THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW :/^; ^ ^322 I PI I p'^F^ft^V OF The High Court Procedure Act and Rules The High Court Procedure Act. 1903-1915 and Rules of the High Court of Australia together with Cross References and Notes of Cases and Index. d>' V V* BY O. C. W. FUHRMAN, O.B.E., Assistant Librarian Supreme Ooiirt Library, Mt-lbourne. THE LAW BOOK CO. OF AUSTRALASIA LTD. .Sydney 151 Phillip Street Melbourne .. .. 425 C^liaiK-ery Lane Brisbane Inns of Court, Adelaide Street 1^21 I©hn Andrew and f"o.. Prliiterrv Sy^fic;». N» ^ r;^ To the memory of the late MR. JOHN SCHUTT, this small work is, by permission of His Honor Mr. Justice Schutt, respectfully dedicated. 729728 PREFACE From his long experience in the Supreme Court Lil)rary, Mel- l)f.nrn<', duriiiji which he was constantly enwafied in lielpinji lawyers to discover where to find their law. Mr. P'uhrman is. in my opinion, eminently fitted for tlie task of writinji a hook such as this. I have myself assisted in revising the work, and can testify that it is marked, by the exactness and care which those who know the author would expect. A practical proof of the value of the book was given by the frequent use of the manuscript in the Library during a period of several months. L. F. S. ROBINSON, B.A., LL.B., Supreme Court Library, .Melbourne. April 30th, 1921. TABLE OF CONTENTS Page Abbreviations . . . . . . . . . . . . 9 Table of Cases 10 High Court Procedure Act, 1903-1915, with notes of cases decided, thereon, and cross references — Preliminary . . . . . . . . . . 1 Procedure of the High Court . . . . . . 1 Appeals to the High Court . . . . . . 2-16 Table of Kules of the High Court of Australia . . . . 18-19 Table of Schedules, Forms, Etc 20 Eules of the High Court of Australia, with notes of cases decided thereon, and cross references — • Original Jurisdiction 21-140 Appellate Jurisdiction UO-155 Order of the Court No. 162 of the 27th July 1920 (Judgments) 155 Criminal Practice 156 Practitioners' Rules of Admission . . 157-161 Schedules, Forms, Etc. 162-168 Scale of Fees . . 169-172 Index . . 173 TABLE OF ABBREVIATIONS A.L.li. .. .. .. .. Argus Ijiiw Ke|)(>its A.L.T. . . . . Au.stialiaii Law Times # C.L.R. .. .. .. Cuniniunw'oaltli J^aw K«'|)(iits 8.H. (N.S.W.) .. State Reports. X.S.W. \.L.K. Victorian Law Ueixnts W.A.L.R. Western Australian Law Reports W.X. (N.S.W.) .. Weekly Notes. New Soutli Wale: TABLE OF CASES A Amalgamated Mining Employees' Association of Victoria and Tasmania ; I'lentice v., 15 C.L.R. 235 (1912) ; 18 A.L. R. 343 (1912) 87,153 Anderson ; Fisk v., 19 C. L. R. 518 ( 1915) 25, 150,155 Ashton & Parsons, Ltd., v. Gould, 7 C. L. R. 598 (1909) 149 Associated Northern Colleries ; Rex. v., 11 C. L. R. 738 (1910) 51, 70, 72 Australian Mutual Provident Society ; Williams v., 2 C. L. R. 385 (1905) ; 1 1 A. L. R. 438 ( 1905) 40 Australian Temperance and General Mutual Life Assurance Society, Ltd., V. Holland. 20 ('. L. R. 145 (1915) ". 137 B Bank of N. S. W. ; Commissioners of Income Tax (Q.) v., 18 C. L. R. 207 (1914) 5 Beale ; Minister for Home Affairs v., 22 C. L. R. 98 (1916) ; 22 A. L. R. 301 (1916) 135 Bennett v. Brown 5 S. R. (N. S. W.) 541 (1905), 22 (N.S.W..), 185 152 Blackwood No. 3 ; Chanter v., 1 C. L. R. 456 ( 1904) 135 Bond V. The Commonwealth, 1 C. L. R. 13 (1903) 59. 62 Brickwood V. Young, 2 C. L. R. 74 ( 1904) 151 Britz, Ex parte. 4 S. R. (N. S. W.) 116 (1904) ; 21 W. N. (N. S. W.) 18 135 Britz ; Donohoe v., 1 C. L. R. 391 (1904) 135 Britz ; Donohoe (No. 2) v., 1 C. L. R. 662 (1904) 135 Brown ; Bennett v., 5 S. R. (N. S. W.) 541 (1905) ; 22 W. N. (N. S. W.) 185 152 Bruce v. Commonwealth Trade Marks Label Association, 4 C. L. R. 1569 (1907) ; 13 A. L. R. 532 (1907) 26 Burchell ; Hedges v., 17 C. L. R. 327 (1913) 84 Buzacott & CV, Ltd., v. Cyclone Pty., Ltd., 27 C. L. R. 286 (1920) 143 C Chanter v. Blackwood No. 3, 1 C. L. R. 456 (1904) 135 Christie v. Robinson, 1907 V. L. R. 1 18 ; 13 A. L. R. 288 ( 1907) 1 52 City Bank of Sydney v. McLaughlin, 10 C. L. R. 362 (1909) 135 Collins V. Smith, 9 C. L. R. 490 (1909) 148 Commissioner of Income Tax (Q.) v. Bank of N. S. W., 18 C. L. R. 207 (1914) 5 Commonwealtli ; Bond v.. 1 C. L. R. 13 (1903) 59, 62 Commonwealth ; Marconi's Wireless Telegraph Co., Ltd.. No. 1, v. 15 C. L. R. 685 (1912) . 112 Commonwealth ; Marconi's Wireless Telegraph Co., Ltd., No. 2, v. 16 C. L. R. 178 (1913) ; 29 A. L. R. 129 (1913) 112 Commonwealth ; Marconi's Wireless Telegraijh Co., Ltd., No. 3, v. 16 C. L. R. 384 (1913) fl-J Commonwealth ; Spencer v., 5 C. L. R. 418 (1906) 54, 56, 57 Commonwealth Trade Marks Label Association ; Bruce v. 4 C. L. R. 1569 (1907) ; 13 A. L. R. 532 (1907) 26 Cyclone Pty., Ltd. ; Buzacott & Co., Ltd. v., 27 C. L. R. 286 (1920) 143 D Daily Telegraph Newspaper Co. ; McLaughlin v., 1 C. L. R. 143 (1904) 6, 15 Delph Sing v. Karbowsky, 18 C. L. R. 197 (1914) 15, 132, 148, 150, 155 Donohoe v. Britz, 1 C. L. R. 391 (1904) • • • ■ 135 Donohoe v. Britz, No. 2, 1 C. L. R. 662 (1904) 135 Dun V. Macintosh, 3 C. L. R. 1134 (1906) ; 12 A. L. R. 581 (1906) 151 E Eacott ; Rubin v., 15 C. L. R. 386 (1912) 148 TAiiLE UK CA8E8 U F Falk: Lvsa<,'ht Hr<.«. A: Co., Ltd.. N... -'. v.. J C L. R. 44:< (liMir.) ; 11 A. L." R. 44.-» ( l!M).j) •-• i' Fisk V. Andorson. 19 C L. R. 518 (1915) -•"»• ••'">". ' Oi> C (i(.rdon ; Ex parti-. :i(\ L. R. 724 ( l!MHi) : fi' A. 1.. R. l<»i ( l!Miiii. \:,:i Could ; Aslit.Mi \- I'a.s.pus. Lt.L. v.. 7 C L. R. .V.ts ( I'.to!!) 1 !'• I! Haus.i ; l»..ita v.. :.'7 C. L. 1{. 1!)-' (I'.U'.t) 147, 14;» H. ('. L. R. .->:n ( l!ti:{) : l!i A. L. R. y.") (1913) I.i0 Hcd^ics V. Hiuvlull, 17 C. L. R. ;{l'7 (l!ti:{) »•* Holland; Australian Tcmperanco and (Jt-ncrai Mutual Lifi- A.^surancc Society, Ltd., v., 20 C. L. R. 14.5 (191.".) 137 J James; Milne v.. 12 W. A. L. R. HI (191(M ; 1:5 C L. R. Km (1910) .... 14'.> K Karbowskv: Delpli Sinj; v.. is ('. L. 1!. 197 (1914) I.'). i:{2. 14s, l.'.o. l."..". Kidman :"Rex v., 20 C. L. R. 42.". ( 191.-.) .^ 1, Ix-e Ciiun ; Shannon v., l.j (". L. R. 2.-)7 (1912) '•'► Lever Hros., Ltd.. v. (i. Mowlinj;& Son, .") f. L. R. .■)1(» (1908); 14 A. L. it. 73 (1908) 132, 141. US. l.V. Lvon.s ; Maine v.. l.') f. L. R. 071 ( 191.3) ; 19 A. L. R. 99 (1913) I.'.o Lvons V. Smart, 6 V. L. R. 2S.-> (1908) : 14 A. L. R. ()I9 ( 1908) 13.".. l.-i3 LVaaght Bros. & Co., Ltd.. Xo. 2. v. Falk. 2 C. L. R. 443 (1905) : 1 1 A L. li. 44.5 (190.-)) '-• "" M .M.Farlane & C... : Ward v., 22 C. L. R. 4SS (1917) 72 M.K.-on V. Miller. 22 W. X. (X. S. W.) 22 ( 19(tr,) 149 McLaufrhlin : Citv Ban); of Sydney v., 10 C. L. R. 3(i2 (1909) 13.> MeLau^ddin v. Daiiv Tele^'rapli Xewspaper Co.. 1 C. L. R. 143 (19(M) 0. L5 MeLau'ddin v. Vale'of Chvvdd Coal Mining' Cc. Ltd.. 1 (". L. R. 143 (1904). . 6. 15 Maehin'v. .Maehin. 21 C. L. R. 127 (1910) 130. 1.37. 147. 14S Maeintosl. ; Dun v.. 3 C. L. R. 11.34 (1900) ; 12 A. L. R. 581 (1900) 151 Maekav. In re, ex parte Quaine, 12 S. R. (X. S. W.) 662 : 29 W. N. (X. S. W.) 170 (1912) • l'» Maiden v. Maiden. 25 W. X. (X. S. W.) I4(> ( 1908) 153 Maine v. Lv-ns, 15 C. L. R. 071 (1913) : 19 A. L. R. 99 (1913) I5n Major: Miller v.. 4 C. L. R. 219 (1900) 15m Mareoni's Wireless Tele<;rai>li Co.. Ltd.. X.>. 1. v. The Cnnimonwealth. 15 C. L. R. 085 (1912) ' ' - Mareoni's Wireless Telejiraph Co.. Ltd.. Xo. 2. v. The Commonwealth. 10 C. L. R. 178 (1913) "- Marconi's Wirele.ss T(de^'rapli Co.. Lt09) : 15 A. L. R. 131 (1!M»9) I>1 Mowlin.' .V Sons. (J.: b-ver Bros.. Ltd.. v.. 5 C. L. R. 510 (I90S): 14 A. L. R. 73 (1908) i:?2. 141. I4S. l.V, Muirhead ; Riiruall v.. 13 C. L. R. 4.30 (1911) ^■> 12 TABLE OF CASES o Osborne (No. 2) ; Peacock v., 13 A. L. R. 254 (1907) 134. 152 O'Sullivan v. Morton, 1911 V. L. R. 235; 17 A. L. R. 140 (1011): .32 A. L. T. 172 152 P Palmer ; Rankin v.. 16 C. L. R. 285 (1912) 151, 152 Peacock v. Osborne (No. 2). 13 A. L. R. 2.54 (1907) 134, 152 Porta V. Hauser, 27 C. L. R. 192 (1919) 147, 149 Potter's Sulphide Ore Treatment Ltd., v. Sulphide Corporation, Ltd., 13 C. L. R. 101 (1911) 71 Prentice v. Amalgamated Mining Employees' Association of Victoria and Tasmania. 15 C. L. R. 2.35 (1912) ; 18 A. L. R. 343 (1912) 87, 153 Q (iuaine Ex parte. In re Mackay, 12 S. R. (N. S. W.) 062 ; 29 AV. N. (N. S. W.) (1912) 176 16 R Rankin v. Palmer, 16 C. L. R. 285 (1912) 151, 152 Rex V. Associated Northern Colleries, 11 C. L. R. 738 (1910) 51, 70, 72 Rex V. Kidman, 20 C. L. R. 425 (1915) 8 Riggall V. Muirhead, 13 C. L. R. 436 (1911) 43 Roberts v. Roberts & Moffatt, 7 C. L. R. 566 (1908) 142 (2) Roberts & Moffatt ; Roberts v., 7 C. L. R. 566 (1908) 142 Robinson ; Christie v., 1907 V. L. R. 118 ; 13 A. L. E. 288 (1907) 152 Rounsevell ; Ryan v., 10 C. L. R. 176 (1910) 132. 142, 148, 155 Roval Insurance Co. ; Western Australian Bank v., 7 C. L. R. 385 (1908) ; '14 A. L. R. 189 (1908) 135 Rubin V. Eacott, 15 C. L. R. 386 (1912) 148 Russell V. Russell, 24 C. L. R. 19 (1917) 142 Ryan v. Rounsevell, 10 C. L. R. 176 (1910) 132. 142, 148, 155 S Schiffraan ; Symons v., 20 C. L. R. 277 (1910) 153 Shannon v. Lee Chun, 15 C. L. R. 257 (1912) 66 Smart ; Lyons v., 6 C. L. R. 285 (1908) ; 14 A. L. R. 619 (1908) 135, 153 Smith ; Collis v., 9 C. L. R. 490 (1909) 148 Spencer v. The Commonwealth, 5 C. L. R. 418 (1906) 54, 56, 57 Sulphide Corporation, Ltd. ; Potter's Suli^hide Ore Treatment, Ltd., v., 13 C. L. R. 101 (1911) 71 Symons v. Schiffman, 20 C. L. R, 277 (1910) 153 V Vale of Clywdd Coal Mining Co., Ltd. ; McLaughlin v., 1 C. L. R. 143 (1904) 6, 15 W Ward V. McFarlane & Co., 22 C. L. R. 488 (1917) 72 Westcott V. Westcott, 25 C. L. R. 495 (1918) 150 Western Australian Bank v. Royal Insurance Co., 7 C. L. R. 385 (1908) ; 14 A. L. R. 189 (1908) 135 Wilkie V. Wilkie, 2 C. L. R. 383 (1905) ; 11 A. L. R. (C. N.) 21 (1905) 150, 152 Williams v. Australian Mutual Provident Society, 2 C. L. R. 385 (1905) ; 11 A. L. R. 438 (1905) 40 Wilson V. Moss, 8 C. L. R. 146 (1909) ; 15 A. L. R. 131 (1909) 151 WoodhaU ; Hedberg v., 15 C. L. R. 531 (1913) ; 19 A. L. R. 95 (1913) 150 Y Young ; Brickwood v., 2 C. L. R. 74 ( 1904) 151 HIGH COURT PROCEDURE ACT 1903-15. (r/) An Act to regulate the Practice and Procedure of the High Court. [Assented to 28th August, 1903.] (h) {u) Act No. 5 of 191.5, s. 1, siib.-s. 2 :— The High Court Procedure Act 1903, as amended by the High Court Procedure Amendment Act 190.'}, and by this Act (Act Xo. o of 191.")) may he cited as the High Court Procedure Act 1903-1915. (/>) This is tlie date of assent to the High Court Procedure Act 190.3. The High Court Procedure Amendment Act 190.3, was assented to on 2l8t October, 1903, and the date of assent to the High Court Procedure Act I91.j. was 1st May, 1915. BE it enacted by the King's Most Excellent Ma jest}', the Senate, and the House of Representatives of the Commonwealth of Australia, as follows : — Part 1. — Preliminary. 1. This Act may be cited as the High Court Procedure short tuie. Act 1903-15(a) and is divided into parts as follows : — Part L- — Preliminary, ss. 1, 2. Seals, &c., ss. 3-5. District Registries, ss. 6- 11. Trial of Issues, ss. 12-15. Trial of Indictable Of- fences, ss. 15a and 15b. Evidence, ss. 16-22. Defects and Errors, ss. < 23, 24. Change of \>nue, s. 25. Judgment and Execution, ss. 26-28. Receivers and Managers, ss. 29, 30. Actions by and against the Mar.shal, s. 31. [ Rules of Court, ss. 32-34. Part II. — Procedure of the High Court 2 INTEEPRETATION. H. C. P. Act. Sec. 2. Part III. ^Appeals to f Security, ss. 35, 36. the High Court ( Procedure, ss. 37-39. The Schedule, (b) (a) Act No. 7 of 1903, has been amended by the High Court Procedure Amendment Act 1903 (No. 13 of 1903), and by the High Court Procedure Act 1915 (No. 5 of 1915). The Amendments so made have been incor- porated in this print, and not printed sej)arately. (b) The Rules contained in the Schedule to the High Court Procedure Act 1903, have on a number of occasions been altered by Rules of Court made by the Justices of the High Court (High Court Procedure Act 1903, ss. 32, 33). By Rules of Court as of 9th December, 1910 (Statutory Rules 1910, No. 1.30), it was ordered that the several Orders, Sections, and Rules of Court in the Schedule to the High Court Procedure Act 1903, as amended from time to time should' be numbered consecutively, and printed as so amended. This was done, but since that date there have been further amendments, which are embodied in the following pages. Interpretation. 2. Ill this Act, uiilcss the coutrary intention ap- pears — " Suit " includes any action or original proceeding between parties ; " Cause " includes any suit, and also includes criminal proceedings ; " Matter " includes any proceeding in a Court, whether between parties or not, and also any incidental proceeding in a cause or matter ; " Plaintiff " includes any person seeking any relief against any other person by any form of proceeding in a Court ; " Defendant " includes any person against whom any relief is sought in a matter, or a\ ho is required to attend the jDroceedings in a matter as a party thereto ; " Justice " in the expressions " Court or Justice " or " Court or a Justice " means a Justice of the High Court sitting in Chambers ; " The Chief Justice " includes any Justice upon whom the powers and duties of the Chief Justice de- volve for the time being ; " Judgment " includes any judgment decree order or sentence ; " Full Court " means two or more Justices of the High Court sitting together ; " Appeal " includes an apphcation for a new trial and any proceeding to review or call in question the proceedings decision or jurisdication of any Court or Judge. SEALS. y H. C. P. Act. Sees. 3-5. Part II. — Procedure of the Hicii ( "m in. Seals. 3. — (1) The Hi,iih Court shall havt- and use as oeeasioii SfU. requires a Seal, having inscribed tliereon tiie words '* The Seal of the High Court of Australia " (a). Such seal shall be kei)t at the Princii)al Registry, in such custody as the Chief Justice directs. (2) There shall be kept at every District Registry, in such custody as the Chief Justice directs, a duplicate of the Seal having inscribed thereon the additional \\ ord " Registry " with the name of the State pre- fixed, and also^ if there are more District Registries than one in the State, such other distinctive word as the Chief Justice directs. (3) There shall also be kept and used at the Princii)al Registry and at the several District Registries such other seals as are required for the business of the Court. Such seals shall be in such form and shall be kept in such custody as the Chief Justice directs. (4) All documents and all exem})lihcations and copies thereof purporting to be sealed with any such seal shall in all parts of the Commonwealth be receivable in evidence without further proof of the seal. («) As to use of Seals, see s. 4, infra. As to use of Groat Seal, see (Jrder LVIL, r. 1. As to keeping an Office Seal at every Registry; see Order l.\ II.. r. 1. 4. — (I) All writs commissions and |)rocess issued [t's.'ou*'*''' from the High Court shall be in the name of the King. and shall be under the Seal of the Court, or such other seal {a) as is prescribed by Rules of Court, and shall be signed by a Registrar or other proper officer, [h) (2) They shall be tested in the name of the Chief Justice, or when the office of Chief Justice is vacant in the name of the senior Justice. (a) As to the use of an Office Seal; .see Order LVII.. r. 2. As to sealing summons in a Chamber application; see Order XL\ I., r. -. (h) As to a Registrar's Clerk signing writs and other documents; sec Order L\'I1.. r. 3. 5. All writs and process issued from the High Court ^"^:"°,7'""" or any other Court exercising federal jurisdiction shall be dated («) as of the day on which they are issued. {) of Section S and Sections It. in, 11 should bo amendcfl 1)V omitting the wonl ' l)istri<-t " wherever it on urs therein."' 6 DOCUMENTS. H. C. P. Act. Sec. 9. (a) Applications for increase of amount of security under s. 36 of the High Court Procedure Act must be made with expedition, whether there is a Justice of the High Court sitting in the State where the apjieal is to be heard or not. On the 29th December, 1903, the plaintiff filed notice of intention to appeal to the High Court from decisions of the Supreme Court of New South AVales, and deposited £.50 as security for the due prosecution of the appeal. On the 4th February the defendants in each case had notice of plaintiff's appeal, and on the 8th March took out a summons for increa,sed * security under s. 36 of this Act. There was no Justice of the High Court sitting in Sydney until 14th March, but in the interval Justices of the High Court had been sitting in Hobart and Melbourne. Held {per Griffith, C. J.) that the applications were made too late, and that the applicants should have proceeded under s. 8, by taking out a summons in Sydney as early as possible, and having the case transferred, for the purpose of hearing the summons, to Hobart or Melbourne : Mr- La mjlilin v. Daili/ Telegraph Neu-spaper Co., Ltd.; McLaughlin v. Vale ofClwyldCoal Mining Co., Ltd. (1 C.L.R. 143 [1904]). Transmi:^sion of 9. — (1) 111 aiiy sucli case as mentioned in the last telegraph.''''^ prececliiig section, any party desiring to make an im- \rt of T87r''^ mediate application to the High Court or a Justice may, instead of requesting that the cause be trans- ferred to such other Registry, require the [District]* Registrar to transmit by telegraph to such other Regis- try the contents of all such documents filed in the first-mentioned [District]"^ Registry as are necessary for the purpose of the application, and the [District]* Registrar shall, on payment by such party of the expense of transmission, transmit them accordingly. (2) The copy so received by telegraph shall be filed in such other Registry, and shall be receivable in evi- dence for the purpose of the application to the same extent as the original documents would be admissible. (3) If the application is to be made upon notice to any person, the notice shall state that the documents will be transmitted by telegraph to such other Registr3^ (4) If any person to whom notice is given requires any other documents to be transmitted by telegraph to such other Registry, they shall be transmitted and shall be receivable in evidence in like manner. (5) Evidence of service of the notice may also be so transmitted. * This Section was amended by Act No. 13, s. 3, 1903, which provided ■* that Sub-sections (2), (3) and (5) of Section 8 and Sections 9, 10, 11, should be amended W omitting the word ' District ' wherever it occurs therein." OEDEK^i TrnAL OK ISSlKS. 7 H. C. P. Act. Sees. 10-13. 10.— When in any of the eases mentioned in tlie t wo ^^nt l-VieiWrii-h last preeeding sections an order has been made by tlie Court or a Justice at a Registry other than that in which the cause is ))ending, tlie Registrar of that Regis- try shall at the request and exi)ense of eitlier ))aity and without payment of any further fee inform tlie [District]* Registrar of the first-mentioned Pvcgistry by telegrai)h of the effect of the order, and thereupon and without waiting for receipt of the order full effect shall be given to the order. * This Section was ainonded by Ad No. V.i, s. 3, 190:i, whidi provided * " that Sub-sections (2), (li) and (5)"of Section 8 and Sections !l, 10. 1 1 sh-. or a Justice otherwise orders, the trial (a) shall be by a l-s.6s9. Justice without a jury. (a) Every trial of an issue of fact with a jmy shall be held before a sinf;Ic Justice unless it is specially ordered to be held Ijefore two or more Justices; see Order XXXIII., r. 5, as to procedure; see Order XXXIII., r. 5. 13. The High Court or a Justice may, in any suit .KVrLi m' in which the ends of justice ai)pear to render that mode '^^ij"*^;^. ^^^ of inquiry expedient, direct the trial with a jury of the s.ei.' suit or any issue of fact, {a) and may for that ])ur])ose make all such orders and issue all such writs and cause all such |)roceedings to be had and taken as the Court or Justice thinks necessary ; and upon the finding of the jury the Court or Justice may give such decision and pronounce such judgment as the case requires. <(/) See Order XXXIII., r. 3. As to trial of issues of fact wittiout pleadinc; see Order XXXII., r. 9. 8 ISSUE AND NEW TRIALS TRIAL OF INDICTABLE OFFENCES- H. C. P. Act. Sees. 14^15a. Issue and new trials. Juries. U.S. 800. Trial of indictaljle offences. 14. In any case in which the High Court or a Justice is authorized to direct the trial of an issue or in Avhich a new trial is granted, the Court or Justice may impose such conditions on the parties respectively and may direct such admissions to be made by them or either of them for the purpose of the trial or new trial as are just ; and in the case of a new trial may grant it either generally or on some particular points only as the Court or Justice thinks fit, and may order that the testimony of any witness examined at the former trial may be read from the Justice's notes instead of his being again examined in open court. 15._(1) The laws of each State relating to the quah- fication of jurors, the preparation of jury hsts and jury panels, the summoning, attendance, and impanelling of juries, the number of jurors, the right of challenge, the discharge of juries, the disagreement of jurors, and the remuneration of jurors, for the purposes of the trial of civil matters pending in the Supreme Court of that State, or relating to any other matters concerning jurors after they have been summoned or sworn, shall extend and be applied to civil matters in which a trial is had with a jurv in the High Court in that State, so that the hsts of jurors shall be deemed to be made as well for the purposes of the High Court as of the Supreme Court of the State. (2) But the panel of jurors shall be made out and the jurors shah be summoned by officers of the Common- wealth. (3) Every officer of a State who has the custody of any jury hst shall furnish a copy thereof to the proper officer of the Commonwealth on demand and on pay- ment of a reasonable fee. Trial of Indictable Offences. *15a. The trial by the High Court of indictable offences against the laws of the Commonwealth shall be by a justice with a jury, {a) * This Section was added by the Act No. 5 of 1915, which provides that it " shall remain in operation during the present war and six months thereafter and no longer." {a) The High Court has original jurisdiction in trials of indictments for offences against the laws of the Commonwealth. Quaere, whether s. 18 of the Ju- diciary Act 1903-1915, which authorises a Justice of the High Court sitting alone, whether in Court or in Chambers, to reserve any question for the consideration of the Full Court, applies to a Justice sitting in the con- duct of a criminal trial : Rex v. Kidnmn (20 C.L.R. 425 [1915] ). Jl'PvV. LAWS K\ IDKNCE. 9 H. C. P. Act. Sees. 15i<-17. *15b.— (1) The laws ot eacli State ivlatiiiiz Xo tlie ''■^" • qualilicatioii of jurors, the prej)aratioii ot jury lists and jury panels, the sunimoninti, attendance, and impan- nclliiitr of juries, the number of jurors, tlie riLfht of ehallenge, the dischar«ie of juries, the disagreement of jurors, and the remuneration of jurors, for the pin-poses of the trial of criminal matters pendiiiif in the Sui)reme Court of that State, or relating to any othei- matters concerning jurors after they have been summoned or sworn, shall extend and be applied to the trial of in- dictable otfences in the High Court in that State, so that the lists of jurors shall be deemed to be made as well for the piu-poses of the High Court as of the Su- j)reme Court of the State. (2) But the panel of jurors shall be made out and the jurors shall be summoned by officers of the Connnon- wealth. (3) Every othcer of a State who has the custody of any jury list shall furnish a copy thereof to the proper officer of the Commonwealth on demand and on ])ay- ment of a reasonable fee, * Tliis Sfction was added In- tlio .\ft No. ."> of litl.j, wliich ]>rovidt's that it " shall remain in operation during tlie j)ie.sent war and si.\ months there- after and no longer." Evidence. • 16. The .Justices of the High Court or a majority of »;''|;;^f/^"/"f' them may make rules of Court for regulatinLi the means i^rtuuiar facts. 1 1-1 ^- 1 !• i. U 1 ' 1 *I ] Cf. Jud. .\rt 1804. by which particular tacts may be proved and the mode sreof may b(> given. l^^.z^'^*^'^' 17. The High Court may in any suit order the ])arties j;^;*,!^"'*'"" °^ to jiroduce any books or writings in their possession or r.s. 72:. power which contain evidence j)ertinent to any issue in the suit. If a plaintiff fails to comply with the order the Court may dismiss the suit : and if a defendant fails to comply with the order the Court may give judgment again.st him as by dcfauh. As to discovery and inspection under tlie Hnles of ('(Hirt; see Order X.XIX. 10 H. C. P. Act. EVIDENCE AND OATHS. Sees. 18-20. Oatlis. U.S. 725. Orders aud oommissions for examination of witnesses. Evidence by afadavit. 18. — (1) The High Court may require and administer all necessary oaths, (a) (2) The forms of oaths shall be the same, as nearly as may be, as those which are used in the Supreme Court of the State or part of the Commonwealth in which the oath is administered. (3) Any person who by the law of the State or part of the Commonwealth in which an oath is to be ad- ministered is entitled to make an affirmation instead of taking an oath may do so in any cause or matter in the High Court, and shall do so in the form prescribed by that law. (a) As to administering of oaths by a person directed to take the examination of person; see Order XXXIV., r. 11. 19. The High Court or a Justice may, in any suit or civil matter pending in the Court and at any stage of the proceedings, order the examination of any person upon oath orally or on interrogatories before the Court or a Justice or before any officer of the Court or other person, and at any place within the Commonwealth ; or may order a commission to be issued to any person either within or beyond the Commonwealth authorizing him to take the testimony on oath of any person orally or on interrogatories ; and may by the same or any subsequent order give any necessary directions touch- ing the time place and manner of any such examina- tion ; and may empower any party to the suit or civil matter to give in evidence in the suit or matter the testimony so taken on such terms (if any) as the Court or Justice directs. See Practice under Order XXXIV. 20. — (1) On the hearing of any matter, not being the trial of a cause, evidence may be given by affidavit {a) or orally as the Court or Justice directs. (2) At the trial of a cause, proof may be given by affidavit of the service of any document incidental to the proceedings in the cause, or of the signature of a party to the cause or his soKcitor to any such docu- ment. EVIDEXCK AT Ti;i.\l. AM KND.M K.\T. 11 H. C, P. Act. Sees. 21-24. (3) Tho Higli Court or a .histice may at any tinu' for l^ff"™'*^"' sufficient reason order that any })articiilar facts in issue o.stk. i. in a cause may bo ]jrove(l by affidavit at tlie trial, or that tlic affi(la\it of any j)crson may be read at tlie trial of a cause, on such conditions in either case as are just. But such an order shall not be made if any ])arty to the cause desires in tjood faith that the projjosed wit- ness shall attend at the tiial for cross-examination. (a) As U) artidavits gcnorally; seo Order XXXV. As to cross examination of a deponent; sec Order XXXV., r. 1. 21. Except as hereinbefore ijrovided, or unless in any Evidence m trmi 1 I ' • to be given orallv suit the parties agree to the contrary, testimony at the inopenc-oun. 1 O .' I except fcrtain trial of causes shall be given orally in o))en court. «««*• 22. The Chief Justice may issue commissions to I! KCEI VERS— .MARSHAL H. C. P. Act. 28. A seizure or attaclinient of property in execution ,V,i;['l?,Tuil ui)()n ]jrocess issued out of the High Court shall become ''"^^'"••■"' in()[)erative when any event occurs by which, according to the laws of the State in which the property is situated, the seizure or attachment would become in- 0|)erative if made upon like process issued out of the Supreme Court of that State. Receivers and Managers. 29. When in any cause pending in the High Court a i>uty or receiver />„ ' •j.iij.i/'i J. • • un'l nmnaeer. receiver {a) or manager ai)])onited by the Court is in ,. ^ ^^ ^^^ possession of any property, the receiver or manager shall 1 1.. >««, .. 2. manage and deal with the property according to the requirements of the laws of the State or jjart of the Commonwealth in which the property is situated, in the same manner in which the owner or jiossessor thereof woidd be bound to do if in possession thereof. (it) As to practict' with ros]H'tt to ai)]jointnK>nt of receivers; see Order XLIII. 30. A receiver or manager of any property appointed ■••"•■'lity ami by the High Court may, without the previous leave of r.nivir.ana the Court, be sued in respect of any act or transaction ,i,.f. 39. — (1) When either party to a judgment from which an appeal lies to the High Covirt dies before the time allowed for instituting an appeal has expired, it shall not be necessary to revive the cause or matter by any formal proceedings. (2) If the personal representative of the deceased party desires to appeal, he may file in the Court in which the cause or matter is pending a duly certified copy of the instrument by which he is appointed, and thereupon may institute an appeal in the same manner as the party whom he represents might have done. (3) In the case of the death of the party in whose favour the judgment is given or made, notice of appeal may be given to his personal representative, or, if there is no such representative, to such person as the High Court or a Justice directs. The Rules of the High Court of Austraha (Schedule to the High Court Procedure Act) TABLE OF RULES OF COURT. Part I. — Original Jurisdiction. Page I. C oinniencement of Civil Proceedings 21 II. Parties to Actions 22 III. Proceedings by and against Paupers 25 IV. Partial Relief 26 V. Writs of Summons 27 VI. Concurren Writs 29 VII. Renewal of Writs : Lost Writs . . 30 VIII. Service of Originating Proceedings 31 IX. Service out of Jurisdiction 33 X. Appearance 34 XI. Default of Appearance 37 XII. Change of Parties 39 XIII. Leave to Sign Summary Judgment 41 XIV. Summary Judgment — Actions for Account 43 XV. Summons for Directions . . 43 XVI. Trial without Pleadings . . 45 XVII. Pleadings Generally 46 XVIII. Particulars 51 XIX. Statement of Claim 52 XX. Defence 54 XXI. Payment into Court 56 XXII. Reply and Subsequent Proceedings 58 XXIII. Matters Arising Pending the Action 59 XXIV. Demurrer . . 59 XXV. Discontinuance, Etc. . . . . ' 62 XXVI. Default of Pleading 63 XXVII. Amendment 66 XXVIII. Security 68 XXIX. Discovery and Inspection 70 XXX. Admissions 76 XXXI. Issues, Inquiries, and Accounts . . 76 XXXII. Questions of Law and Issues without Pleading s 77 XXXIII. Trial 79 XXXIV. Evidence 84 XXXV. Affidavits . . 86 XXXVI. Motion for Judgment 89 XXXVII. Motions in General 90 XXXVIII. Entry of Judgment 92 XXXIX. Drawing Up Judgments and Orders 93 XL. Relief Against Judgments and Oi 'ders . . 96 XLI. Attachment and Committal . . . . 97 XLII. Actions by and against Firms and Persons carrying on Business in Names other than their own . . . . . . . . ^>^ XLIIa. Practice in Admiralty Actions .. I" I XLIII. Inspection of Property, Interim Preservation, Custody and Management of l^rojx'rty. Receivers, Stop Orders . . ill XLIV. Staying of Proceedings .. .. 11") XLV. Consolidation . . . . . . 1 1 •• XLVI. Chambers IHi XLVII. Certiorari; Mandamus; Prohibition; Quo Warranto ; Writs of Assistance . . 1 1 S XLVIII. Habeas Corpus 124 XLIX. Committal for Contempt of Court 125 L. Appeals in matters relating to Patents and Trade Marks . . . . . . 127 LI. Revocation of Patents . . . . . . 128 LI A. Appeals in matters relating to Land Tax and Income Tax . . . . . . . . 12'.t LIL The Marshal and other Officers charged with Service and Execution of Process . . . . 130 LIII. Time 131 LIV. Costs 133 LV. Service .. .. .. .. .. .. 136 LVI. Sittings and Vacations . . . . . . . . 137 LVII. General Provisions .. 138 PART II. Appellate Jurisdiction. Appeal Rule.s. II. III. IV. IVa. V. Appeals from Justices of the High Court and New Trials Appeals from Decisions of Judges of the Supreme Court of the States in causes or matter pend- ing in the High Court . . Appeals from Supreme Courts of States Appeals from Decisions of Inferior Courts Appeals from the Interstate Commission General Provisions UO 147 153 154 155 Order No. 162 of 27th July, 1920 (Judgments) . . 155 Criminal Practice (Rules 1 to 8) . . 156 Practitioners' Admission Rules (Rules 1 to 27) 157 TABLE OF SCHEDULES, FORMS. Etc. Page L General Form of Writ or Sumiuons . . . . 162 IL Writ of Summons in Actions " f/i rem " .. 163 III. Writ of Service beyond the Jurisdiction, or when notice in lieu of Service is to be given beyond the Jurisdiction . . . . • . • • 163 IV. Notice to be served bevond the Jurisdiction in lieu of Writ . / 164 V. -Special Notice under Order XVI. . . . . 164 VI. General Form of Entrv of Appearance by Defen- dant .. .. "^ 164 VII. Entry of Conditional Appearance . . . . 164 VIII. Affidavit of Entry of Appearance as Guardian . . 165 IX. General Form of Notice of Appearance by Defen- dant 165 X. Indorsements of Claim in Admiralty Actions . . 165 XL Notice of Desire to Become a Student-at-Law . . 166 XII. Certificate of three Householders . . . . 167 XIII. Certificate by two Practising Barristers or Solicitors on the Commonwealth Eegistry . . 167 XIV. Declaration 167 XV. Board's Certificate of Admission as Student-at- Law 167 XVI. Board's Certificate as to Intermediate or Final Examination . . . . . . • • • • 168 XVII. Board's Certificate as to Exemption from Ex- amination or from Examination in Cer- tain Subjects . . . . . . . . • • 168 XVIII. Board's Certificate of Compliance with Rules . . 168 XIX. Scale of Fees 169 ORIOINATIXO PR()( EEDING. H. C. Rules. Or. I. rr. 1-2. PART I.— ORIGINAL JURISDICTION ORDER I. Commencement of Civil Proceedings. 1. Causes and matters in the High Court may be coniniencerl by clintmoncement writ of summons, motion, originating summons, or order to show cause. Causes and matters which are by any Act or Rules of Court required or authorized to be commenced by motion, whether on notice or e.r parte, or by originating summons, or order to show cause, or in anv other specified manner, shall or may, resjjectively. be so commenced. When by any Act or Rules of Court any person is authorized to make any application to the Court or a Justice with resjiect to anv matter which is not already the subject-matter of a pending cau.se or matter, and no other mode of making the a])plication is prescribed by the Act or Rules, the application, if made to the Court, shall l)e made by motion, and. if made to a Justice, shall be made bv origina- ting summons. Except as aforesaid, and except as otherwise i)rovided by anv Act. all causes in the Court shall be commenced by writ of summons. Causes commenced by writ of summons are called actions. The document t»y which a cause or matter is commenced is called an " originating proceeding.' As to writs of Summons; see Order V, e( seq. As to api)licati<)n.s for writs of Certiorari, Mandamus or proiiibition. or for leave to e.xhibit informations of Quo Wttrranlo, or for relief of like nature to Man- damus or Quo Wnrrantu; see Order XIA'II.. r. !. 2. Every proceeding in the Court shall be entitled '" In the High prom'diun^ Court of Australia." If the cause is ])ending in a District Registrv. the word " Registry " shall be added with the name of the State prefixed, and. if there is more than one District Registry in the State, the name of the place at which the Registry is situated shall also be added. As to entitling of affidavits; see Order .\.\.\\'. r. 1*. of i)ri)(ce(lint:.~i on ai)i>li- cation for vertiornri, mandamus or prohibition, or for leave to exhibit informations of quo ivarninto; see Order XL\'II. rr. 3, 4. As to title of actions; .see Form No. 1 (Api)endi.\). As to actions for condemnation of pro|x'rty. or n'covery of anv penaltv. or forfeiture, to be in the name of the Kim;; see Order \'. r. S. 22 H. C. Rules. OEIGINATING PROCEEDING^PARTIES. Or. I. rr. 3-4. Or. II. r. 1. Address of suit and of his solicitor to be indorsed on originating pToceeding. Address for service. Name of prineijial and agent. i'arty suing in person to indorse address for -LTvire. 3. The solicitor of a party suing by a solicitor shall indorse upon the originating proceeding, and upon every notice in lieu of service of an originating proceeding, the address of the plaintiff, and also his own name or firm and place of business, and also, if his place of business is more than one mile from the Registry in which the cause or matter is commenced, a place to be called his address for service, which shall not be more than one mile from the Registry, where any pro- ceedings in the cause or matter may be left for him. And, if the solicitor is only agent of another solicitor, he shall add to his own name or firm and place of business the name or firm and ])lace of business of the principal solicitor. 4. A party suing in person shall indorse upon the originating pro- ceeding, and upon every notice in lieu of service of an originating proceeding, his place of residence and occupation, and also, if his place of residence is more than one mile from the Registry in which the cause or matter is commenced, another proper place to be called his address for service, which shall not be more than one mile from the Registry, where any proceedings in the cause or matter may be left for him. As to indorsement of address for service by solicitor or party suing, see f. 3 supra. ORDER II. Parties to Actions. Persons claiming jointly severally or in the alternative may be jilaintiffs. 1 . Generally. 1. All persons in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, may be joined in an action as plaintiffs, provided that the case is such that if such persons brought separate actions some common question of law or fact would arise. Provided that the Court or a Justice may, in any case in which separate and distinct questions arise, order that separate pleadings be delivered, or separate trials had, or may make such other order as is just. When several plaintiffs are joined in an action, judgment may be given for such of them as are entitled to relief for such relief as they are entitled to, without any amendment. But the defendant shall be entitled to his costs occasioned by joining as a plaintiff any person who is not entitled to relief, unless the Court or a Justice in disposing of the costs otherwise directs. As to adding or striking out parties; see rr., 2, 9, 10. As to change of parties by marriage, death or insolvency; see Order XII. As to firms and persons carrying on business in names other than their own; see Order XLII. As to costs; see Order LIV. PAKTIKS. 23 H. C. Rules. Or- "• "• 2-9> 2. When an action has been commenced in the name of the wronji ,f;|;^'„'^' """'" person as jjlaintiff, or it is doubtful whether an action has been com- piaimiif. menced in the name of the ripht i)laintifT. the Court or a Justice may order that any other person be substituted or added as ])laintiff upon such terms as are just. 3. When any ])erson has been improjierly or unnecessarily joined ;„tjoi',idcr as a plaintiff in an action, the defendant shall be entitled to the same relief by way of cross-claim or set-olf against the other i)laintiffs or any of them, as if that person had not been so joined, notwithstanding such misjoinder or any proceeding consequent thereon. As to cross actions, sec Orders XVI. r. ;j, XVII., r. 3, XX., r. 9. be 4. All persons may be joined as defendants against whom the right •o'iI^"as*' ' to any relief is alleged to exist, whether jointly, severally, or in the defendant-, alternative. And judgment may be given again.st such of the defen- dants as are found to be liable, according to their respective liabilities, without any amendment. As to striking our a defendant; see r.r. 9, 10 infra. As to joining defendants under their firm name; see Order XLII. As to signing judment against one or more defendants in default of appear- ance, see Order XL, and in default of i)leading, Order XXVI. 5. It shall not be necessarv that everv defendant shall be interested Defendant ne«i ,, , ,. , , . , • • , ■• ■ i r i.- "Of be inton-*te''-<'"'-'-- evidence or as to any other procedure shall, if given with the sanction of the Court or Justice by the next friend, guardian, committee, or other person acting on behalf of the person under disability, have the same force and effect as if the party were under no disability and had given the consent. ORDER III. Proceedings by and against Paupers. 1. Any person may be allowed by the Court or a Justice to sue or suinKor defend in any cause or matter as a pauper on proof that he is not '*;;|;","?r"'''^ '"* worth £25, his wearing apparel and the subject-matter of the cause or matter, if any, only excepted, (a) (a) The High Court has no jurisdiction to allow an appeal to be prosecuted m forma pnuperis where tlie a])])eal has not been duly instituted : Fisk v. Ander.-1.-)] ). 2. A person desirous of suing as a ])au])er shall lay a ca.se before a cae shall have indorsed thereon a concise statement of the nature of the ^^^^'ij""-*"^-"^ ^y claim made, or of the relief or remedy sought in the action. Writ of .Summons : Form of, see r. 10, infra. ,, ,, General Form, see Ai)|M'ndix Form No. 1. ,, ,, Statement on, when isKued from Kef;i.stry of State in whieh the tlefendant neither resides or carries on bu.siness, see r. II, infrri. ,, „ Sealing of, see H. ('. P. Act, sec. 4. Date of, see H.C.P. Act, .sec. 'y. ,, ,, Amendment of, .see r. 2, infra. ,, ,, Duration of, see Order \II. r. 1. Concurrent Writs, see Order V. r. 2. Renewal of Writs, see Order V'll. rr. 1 & 2. Loss of Writ, see Order \'II. r. .3. Service of Writ, see Order \'III. and Order IX. Ai)|K'aranee to Writ, see Order .\. Issue of Writ, see Order L\'II. r. 3. Leavinj; copy on i.ssue of Writ, sec r. I"), infra. Indorsement of place of trial, .see Order XX.XIII. r. 1. Commencement of other Causes and Matters, see Order 1. r. 1. The fee [lavable on sealing a writ of summons for commencement of an action is 10/-. 2. The indorsement required by the la.st preceding rule shall not .^luendiuent be invalid by reason of failure to set forth the precise ground of com- """" " plaint, or the precise remedy or relief to which the plaintiff considers himself entitled. The plaintiff may, by leave of the Court or a Justice, amend the indorsement so as to extend it to any other cause of action or any additional remedy or relief. As to amendment, see H. C. P. Act, sees. 23 & 24, and Order XXVII. As to amendment of Writ of Summons, see Order XXVII. r. 1. A plaintiff may in his statement of claim alter, modify, or extend his claim without amending the indorsement on the writ, see Order XIX. r. 1, and Order XXXIII. r. 1. The fee payable on sealing an amended wiit of summons is o/-. 3. If the plaintiff sues, or the defendant or anv of the defendants Muior^cmcnt is sued, in a representative capacity, the indorsement shall show in n-iirt^entativc what ©apacity the plaintiff or defendant sues or is sued. er.son of unsound mind is a party to a cause or matter, service on the committee, if any, of his person or estate, as the case may be, or, if he has not been found or declared to be of unsound mind, or if he has been so declared but a committee of his person or estate, as the case may be, has not been appointed, service on the person with whom he resides or under whose care he is, shall, unless the Court or a Justice otherwise orders, be deemed good service on such party. As to actions by and against hmatics, see Order II., rr. 12, 17. Service on corporations, itc. 3. On Corporations and oilier Bodies. 6. In the absence of any statutory provision regulating service of process, an originating proceeding to be served on a corporation aggregate, whether incorporated under the laws of the Commonwealth or of a State or not, may be served on the mayor or other head officer, or on the town clerk, manager, or other chief officer, of the corporation within the Commonwealth ; and when by any Act provision is made for service of any legal process upon any corporation, or upon any society or fellowship, or any body or number of persons, whether corporate or unincorporate, an originating proceeding may be served in the manner so provided. Indorsfuieiit to lie made on writ witllin tlirce da vs. Substituted service may be allowed. 4. Indorsement of Date of Service. 7. The person serving a writ of summons shall, within three days after the service, indorse on the writ the day of the month and week of the service thereof ; otherwise the plaintiff shall not, without leave of the Court or a Justice, be at liberty, in case of default of appearance, to proceed as upon default ; and every affidavit of service of the writ shall mention the day on which such indorsement was made. As to proceedings in default of appearance, see Order XI. As to method of computing time limited by this rule, see Order LIII- 5. Substituted Service. 8. If it is made to appear to the Court or a Justice that a party is from any cause unable to effect prompt personal service, or service in any other prescribed manner, of the originating proceeding, or any other proceeding requiring service, the Court or Justice may make such order for substituted service, or for the substitution for service of notice, by advertisement or otherwise, as is just. As to personal service, see rr. 1,2, supra. As to evidence required on application, see r. 9, infra. As to service out of jurisdiction, see Order IX. As to substituted service of other documents, see Order LV., r. 2. Evidence. 9. Every application to the Court or a Justice for an order for sub- stituted or other service, or for the substitution of notice for service, shall be supported by an affidavit setting forth the grounds upon which the application is made. As to affidavits generally, see Order XXXV. SERVK'E. 33 H. C. Rules. Or. IX. fr. 1-2. ORDER IX. Service out of the Jl'risdictign. 1. An ori}zinating ])ro{eeding. or notice theroof. may be s<"'"^'^'i '" ^'.[^^"^'"riT out of the iurisdiction of the Court in any of the following cases, that ac, allowed out ■• of iiirlsdiftlftii. IS to say : — (1) When the subject matter of the cause, so far as it concerns the party to be served, is — (a) Land or other property situate within the Com- monwealth, with or without rents or profits thereof ; or {b) Anv shares or stock of a corporation or joint .stock company having its principal place of business within the Commonwealth ; or (c) Anv instrument or thing affecting any such land, property, shares, or stock ; (2) When any contract in respect of which relief is sought in the cause against the party by way of enforcing, rescinding, di.ssolving. annulling, or otherwise affecting, the contract, or by way of recovering damages or obtaining any other remedy against the party for a breach thereof, was made or entered into within the Commonwealth ; (3) When the relief sought against the i)arty is in respect of a breach within the Commonwealth of a contract, wherever made ; or (4) When any act or thing sought to be restrained or recovered or for which damages are sought to be recovered, was done or is to be done or is situate within the Common- wealth. In the case of an action, the indorsement of claim on the writ of summons shall be in such a form as to show that the sub- ject-matter of the action is within the provisions of this Rule. Originatiiif^ Proceeding, definition of, see Order I., r. 1. As to form of writ for service out of jurisdiction and indorsement thereon, see Appendix, Form No. 3. A \^Tit for .service without the juristliction may be issued witliout leave, see Order I., r. 1. As to taking evidence out of the jurisdiction, see H.C.P. Att. ss. 19, 22. 2. If the party to be served is a British subject, the Court or a A^ to Britwi Justice, upon being satisfied by affidavit that the subject-matter of i".yifnd*ti'e''^'"'^ the cause is such that, under the provisions of the last preceding Rule, coinmonweaitii. the originating proceeding may be served out of the jurisdiction, and that it was personally served upon a ])arty out of the jurisdiction, or that reasonable efforts were made to effect personal service thereof u|)on the party and that it came to his knowledge, and either that he wilfully neglects to appear in the cau.se, or that he is living out of the jurisdiction of the Court in order to defeat and delay the ])laintiff, may direct from time to time that the jilaintiff or jjctitioner shall be at liberty to proceed in the cause in sucli manner and subject to such conditions as the Court or Justice thinks fit. 34 H. C. Rules. APPEARANCE. Or. IX. r. 3. Or. X. rr. 1-3. As to forciiiMiTs ri'^icliiii; out i>f the juri-^dictioii. 3. When the originating proceeding is an instrument under the seal of the Court, and the defendant is neither a British subject nor in British Dominions, notice of the instrument, and not the instrument itself, is to be served upon him. Such service shall have the same force and effect as service of a writ of summons or other originating proceeding upon a British subject ; and by leave of the Court or a Justice, upon their or his being satisfied by affidavit as aforesaid, the like proceedings may be had and taken thereupon. As to form of notice, see Appendix, Form No. 4. As to effect of service of writ on British subject out of jurisdiction, see r. 2, aupra. ORDER X. Appearance. Appearance to writ of suniinon* Mode of eatering appearance. Defendant's address for service. 1. General. 1. A defendant shall enter his appearance to a writ of summons in the District Registry from w' hich the writ was issued, or, at his option, in cases in which he is permitted by this Act to enter it at the Principal Registry, at the Principal Registry ; according to the exigency of the writ. As to Registry in which appearance may be entered, see H.C.P. Act, sec. 6. As to time limited for appearance, see Order V., r. 14. As to proceedings in default of appearance, see Order XI. The fees payable on entering appearance for each person, 2 /6 ; if by a Cor- poration or Joint Stock Comijany, or a Company incorporated by Statute or Royal Charter, 10/-. 2. A party entering an appearance shall do so by delivering to the jKoper officer a memorandum in writing dated on the day of its delivery, and containing the name of his solicitor, or stating that he appears in person. There shall at the same time be delivered to the officer a duplicate of the memorandum, which the officer shall seal with the official seal, showing the date on which it is sealed, and shall then return to the person entering the appearance. The duplicate memorandum so sealed shall operate as a certificate that the appearance was entered on the day indicated by the seal. For entry of conditional appearance, see r. 13, m/m. As to an appearance in an action against partners, see Order XLIL, rr. 7, S, 9. Address for service to be in memorandum, rr. 3, 4, infra. For form of entry of appearance, see Appendix, Forms Nos. 6, 9. For form of entry of conditional appearance where defendant denies juris- diction of Court, see Appendix, Form No. 7. For form of entry of appearance of a guardian, see Appendix Form No. 8. 3. The solicitor of a defendant appearing by a solicitor shall state in such memorandum his name or firm and place of business, and also, if his place of business is distant more than one mile from the Registry at which the appearance is entered, a place to be called his address for service, which shall not be more than one mile from that Registry, AI'I'K.\I;A.\( K. 3.-, H. C. Rules. Or. X. rr. 4-12. where anv proceedings in the action may be left for him. And. if the .solicitor i.s only agent for another .solicitor, he .shall add to hi.s own name or firm and place of busine.s.s the name or firm and place of busi- ness of the pnncijjal solicitor. 4. A defendant ai)i)earing in ijerson shall stale in mkIi mcmoran- i».i,i„iucii . . . . . ■ 1 1 nil- 11 r a|>|>«iniia lu dum his address, and also a ])lace, to be called his address tor .service. ,„.r^j„. which shall not be more than one mile from the Regi.stry at which the ai)pearaiice is entered. 5. If the memorandum does not contain sucii address it shall not im-KuUr be received ; and. if the address is illusory or fictitious, the api)earance »i«>iorai..inni. mav be .set aside by the Court or a Justice on the application of the .^.I'^V,'.!"!" plaintilY. 6. The memorandum of appearance shall be in the form in the M.iii..raudiiiii of Appendix with such variations as circumstances require. apiH-aramv. 7 If two or more defendants in the same cau.se appear 1)V the same Defcndant- .1 fiiiiir"ji appearina by solicitor and at the same time, the names of all tlie detendants so same fmiiiitr.r. appearing shall be inserted in one memorandum. 8. A defendant sliall. on the dav on which he enters his ai)i)earance, -Noti.cof give notice of his appearance, in the form in the Apjjendix. to the plaintiffs solicitor, or, if the plaintiff" sues in person, to the plaintiff himself. The notice may be given either by notice in writing .served in the ordinary way at the address for service, or by ])repaid letter directed to that address and i)osted on the day of entering ai)])ear- ance. and shall in either case be accompanied by the sealed duplicate memorandum. For form of iiotiii- of api)earaiue, see Appendi.x. Form No. !l. 9. If a defendant, being entitled to enter his appearance either Ai;in>araiue at at a District Registry or at the Principal Registry, elects to enter it R^^'j^l^'to be at the Principal Registry, the Principal Regi.strar shall on the same {'^",[.^"^,,';> day, at the co.st of the defendant, notify to the District Registrar by to pi.-itrict telegraph that the a])])earance has been entered. eeX'inl^^. 10. A solicitor who fails to enter an a])pearance in pursuance of his soiidujrnot written undertaking so to do shall be liable to attachment. o.|..-..n iiir raiHT. 11. A defendant may a])pear at any time before judgment. If he i api)ears after the time limited for appearance, he shall not. unle.ss the '''''""' Court or a Justice otherwise orders, be entitled to any further time for delivering his defence, or for any other i)urpo.se. than if he had ai)peared according to the exigency of the writ. As to times limitod for appearance, see Order \'.. r. 14. 12. In an action in rem. any person not named in the writ may in- J^;!'"'';?^^!'^^. tervene and appear on filing an affidavit showing that he is interested in the res under arrest, or in the fund in Court. 36 H. C. Rules. APPEAKANCE. Or. X. rr. 13-16. Conditional appearance. 13. A defendant in any cause may enter a conditional appearance, denying the jurisdiction of the Court, and shall not thereby be deemed to have submitted to the jurisdiction, except as to the costs occasioned by the appearance or by any application under this Rule ; and he may thereupon apply to the Court or Justice for an order to set aside the service upon him of the originating proceeding, or the service upon him of notice thereof, as the case may be. Or he may make such application before appearing, and without entering a conditional appearance. If he enters a conditional appearance, and does not make such application promptly, the Court or Justice may set aside the condi- tional appearance with costs, to be paid by the defendant by whom it was entered. If the application is made and dismissed, the conditional appear- ance shall be struck out, and the defendant may enter an appearance as in other cases. For form of entry of conditional appearance, see Appendix, Form No. 7. For form of notice of conditional appearance, see Appendix, Form No. 9. Appearance by infant. 2. Persons under Disability. 14. An order for the appointment of a guardian ad litem of an infant in an action shall not be necessary, but the solicitor applying to enter an appearance for the infant shall make and file an affidavit in the form in the Appendix, with such variations as circumstances require. As to actions by and against persons under a disability, see Order II., r 12., et seq. As to proceedings when no appearance is entered, see Order XL, r. 1. For form of affidavit, see Appendix, Form No. 8. Guardian ad litem in matters otiier than actions. 15. An infant served with an originating proceeding in any cause or matter, not being an action, may appear on the hearing of the cause or matter by a guardian ad litem in all cases in which the ap- pointment of a special guardian is not provided for. An order for the appointment of such guardian shall not be necessary, but the solicitor by whom he appears shall previously make and file an affidavit as in the last preceding Rule mentioned. other cases. 16. When proceedings in any cause or matter are directed to be continued against an infant, or an infant is at liberty to attend any proceedings in a cause or matter, he shall appear as in the last pre- ceding Rule directed. As to change of parties, and order to carry on proceedings when an infant is a party affected, see Order XII., rr. 4, 7. H. C. Rules. AIM'KAHAXnv 37 Or. XI. rr. 1-3. ORDER XI. DEFAn/r OK .\l'l'K.\I<.\NCE. 1 When no ain)earance is entered to a writ of suiiinions for a fW-fen- i>. fault or dant who i.s an infant or a jjerson of unsound nund who lias not been inrum „r iHjrsou so found or declared, the plaintitT shall, 1 efore proceeding with the "f "-'-"•"» -■>'"'» action afjainst the defendant. ai)ply to the Court or a .Justice for an order that some jjroper person be ajipointed as guardian of the defen- dant, hv wfioin he may a|)pear and defend the action. Such an order shall not be made unless it appears that the writ of ^^^^^^^^'^j^^ summons was duly served, and that notice of the application was. after the expiration of the time allowed for appearance, and at least six clear davs before the day in such notice named for hearing the ajiplication. served upon or left at the dwelling-house of the person with whom or under whose care the defendant is then residing, and also, if the defendant is an infant not residing with or under the care of his father or guardian, served ujwn or left at the dwelling-house of the father or guardian, if any. of the infant, unless the Court or Justice at the time of hearing the application dispenses with the last-men- tioned service. When a guardian has been a])])ointed. he shall have the same time for appearance after the service of the order on him as if it were a writ of summons. Aa to actions by and against persons under a disability, sec Order II.. r. 12. el seq. As to entry of appearance by persons under a disability, see Order X., r. 1.3, et seq. As to the times limited for appearance to Writs of Summons, .see Order \'., r. 14. As to .service upon infants and person.s of unsound mind, .see Order \ 111., rr. 4, 5. As to computation of time fixed by this rule, see Order LIll. 2. When a defendant fails to appear to a writ of summons, and the D.-fauitof plaintiff is desirous of jjroceeding upon default of ai)i)earance under g,'.',',';^'*'?}"'''" anv of the following Rules of this Order, he shall, before taking such proceeding upon default, file an affidavit of service of the writ, or of notice in lieu of service, as the case may be. As to default of appearance of the defendant at the trial, sit- Order X.X.Xlll.. r. 16. 3. When the writ of summons is indorsed for a debt or liquidated iX'f,*';;;'.,,,rM..i. demand onlv, and the defendant fails, or all the defendants, if more than one, fail, to api)ear thereto, the plaintiff may enter final judg- ment against such defendant or defendants for any sum not exceeding the sum indorsed on the writ, together with interest at the rate claimed bv the indorsement at the rate agreed upon, if any. or. if no rate is claimed to have been agreed upon, at the rate of five per centum per aniiuiH. to the date of the judgment, and costs. As to feo payable on entering judgment, see Scale of Fees, sub-title " Drawing Up and Entering Judgments and Orders." 38 H. C, Rules. APPEARANCE. Or. XI. rr. 4-8. Liquidated demand : Several defendants. Detention of goods : Damages. Several defendants Liquidated demand and detention of goods and damages. Setting a;ide judgment by default. 4. When the writ is indorsed for a debt or liquidated demand, and there are several defendants, of whom some appear to the writ, and others fail to appear, the plaintiff may enter final judgment as by the last preceding Rule provided against the defendants so failing to appear. Where judgment entered against any defendant it does not prejudice plaintiff's right to proceed on action against the others, see r. 10, infra. 5. When the writ is indorsed with a claim for detention of goods and pecuniary damages, or either, and the defendant fails, or all the defendants, if more than one, fail to appear, the plaintiff may enter interlocutory judgment against such defendant or defendants, and a writ of inquirv may issue to assess the value of the goods and the damages, or either, as the case may be, in respect of the causes of action disclosed by the indorsement on the writ. But the Court or a Justice, instead of issuing a writ of inquiry, may order that the value and the damages, or either, shall be ascertained in any other way which the Court or Justice directs. As to writs of inquiry and references as to damages, see Order XXXIII., r. 25. The fee payable on s'-aling a writ of inquiry is 10/-. 6. When the writ is indorsed as in the last preceding Rule men- tioned, and there are several defendants, of whom some appear to the writ, and others fail to appear, the plaintiff may enter interlocu- tory judgment against the defendants so failing to appear. And in that case the value of the goods and the damages, or either, as the case may be, may be assessed, as against the defendants suffering judgment by default, at the same time as the trial of the action or issue therein against the other defendants. But the Court or a Justice may order that instead of proceeding to such trial, the value and the damages, or either, shall be ascertained by a writ of inquiry as directed by the last preceding Rule, or in any other way which the Court or Justice directs. As to writs of inquiry and references as to damage, see Order XXXIII., r. 25. 7. When the writ is indorsed wath a claim for detention of goods and pecuniary damages, or either, and is further indorsed for a debt or liquidated demand, and any defendant fails to appear to the writ, the plaintiff may enter final judgment against him for the debt or liquidated demand, with interest and costs, and may also enter inter- locutory judgmen'; for the value of the goods and the damages, or either, as the case may be, and may proceed as provided in Rules 5 and 6 of this Order. As to writs of inquiry and references as to damages, see Order XXXIII., r. 25. 8. Any judgment by default under this Order may be set aside or varied by the Court or a Justice upon such terms as to costs or other- wise as the Court or Justice thinks fit. As to setting aside judgment by default of pleading, see Order XXVI., r. 11. By default of appearance at trial, sec Order XXXIII., r. 18. As to relief against judgment and orders, see Order XL. As to staying proceedings, see Order XLIV. APPEARANCE- PARTIES. 39 H. C. Rules. Or- XI. rr. 9-10. Or. Xll. rr. 1-4. 9. In all actions not by this Order otherwise sperially provided for. /.',;,'i'"^^ ;;,',. j„ in case any defendant does not appear within the time limited \>y iiJ«i on or causes of com])laint founded uj)on separate and distinct grounds, they shall be stated, as far as may be, separately and distinctly. And the same rule shall aj)ply where a defendant relies ui)on several di.stinct grounds of defence or cross-claim founded upon separate and distinct facts. As to several defences, see r. 12. infra. 5. If the party pleading relies on any misrepresentation, fraud, Particiiiafs to be breach of trust, wilful default, or undue influence, and in all other ^^^^..p" '" *"^ cases in which particulars are necessary, particulars, with dates and items if necessary, shall be stated in the pleading : Provided that, if the particulars are of debt, expenses, or damages, and exceed three folios, the fact shall be so stated, with a reference to full par- ticulars already delivered or to be delivered with the pleading. As to giving further particulars, see Order XVIII. 6. Pleadings mav be either printed or written, or ijartlv printed Pr'"*'."B - , V • '^ 1 . I pleadings. and jmrtly written. 7. Every pleading or other document required to be delivered to Doiiv.ry i.y a party, or between patries. shall be delivered at the address for .ser- '"''■ vice, to the solicitor of every party who sues or appears by a solicitor, or to the party if he does not sue or appear by a solicitor ; but if no appearance has been entered for any party, then the pleading or document shall be delivered by being filed in the Registry. As to indorsement of address for ser^-ice on originating proceedings and on memorandum of ajjpcarancc, sec Order I., rr. 3, 4 . Order X., rr. ."5,4. As to service when no apjjearancc or no address for service, see Order L\'., r. G. As to .service of documents generally, see Order LV. The fcospayable on tiling a pleatling required to bo delivered when no appear- ance is entered is 1 G. 8. Everv ])lcading shall be marked on the face with the number Marking of the action .the title of the action, the date of the day on which the ''''^"'I'nK^- pleading is delivered and the description of the pleading, and shall be indorsed with the name and address for service of the solicitor and agent, if any, delivering it. or the name and address for service of the partv delivering it if he does not sue or appear by a solicitor. As to title of proceedings, see Order 1., r. 2. As to the title of actions, .see Order \'., r. 9. As to the atldress for service, see Order I., rr. 3, 4. H. C. Rules. PLEADING GENEEALLY. Or. XVII. rr. 9-16. IMoa of " Not guilty by statute " not to bo used. Specific denial. 9. Tlie defence of '' Not guilty by statute " shall not be used. 10. Every allegation of fact in any pleading, if not denied speci- fically or by necessary implication or stated to be not admitted in the pleading of the opposite party, shall be taken to be admitted, except as against an infant or a person of unsound mind. As to general denial, see r. 15, i7ifra. As to effect of general denial, see r. 18, i7ifra. As to effect of denial of contract, see r. 19, infra. When denials in defence, see Order XX., rr. l,-'j. Conditions precedent to be specified by party denying performance. 11. An averment of the performance or occurrence of all conditions precedent necessary for the case of either party shall be implied in his pleading ; and when the performance or occurrence of any con- dition precedent is denied, the condition must, unless it appears al- ready by implication, be distinctly specified in his pleading by the party denying it. Several defences or answers. rieadings to raise all grounds of defence or reply. 12. Any party may, without leave, plead any number of separate defences or other replies or answers to the previous pleading of the opposite party. As to pleading distinct grounds of defence, see r. 5, supra. 13. Each party must raise by his pleading all matters of fact which show that the claim of the opposite party is not maintainable, or that a transaction is void or voidable in point of law ; and all grounds of defence or reply, as the case may be, must be pleaded which, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as, for instance, fraud, release, payment, performance, facts showing ille- gality or invalidity of a contract either by statute or common law, or a Statute of Limitations. XXI. As to payment into Court before or at the lime of delivering defence, see Order Departure. 14. A pleading shall not raise any new ground of claim, or contain any allegation of fact, inconsistent with the previous pleadings of the party pleading it. General denial. 15^ It is Sufficient for a defendant in his statement of defence to deny generally any allegations in the statement of claim. As to specific denial, see r. 10, supra. Effect of denial, see rr. 18, 19, infra. Denial in defence, see Order XX., rr. 1-5. Confession and avoidance. 16. When a party admits any allegation in the pleading of the opposite party, and sets up other matter in answer thereto, he must, unless he amends his pleading, plead the other matter specifically in a further pleading. As to amendment of pleadings see Order XXVII. PLEADING GENERALLY. 49 H. C. Rules. Or. XVII. rr. 17-23. 17. Either party may, in any pleadinjr subsequent to defence, join |'"j,°'^"°* issue u])on the last preceding; i)leadinfr of the ojjposite |)arty. Such joinder of is.sue shall operate as a denial of every material alleviation of fact in the pleading ujton which i.ssue is joined, but it may except any facts which the party is willing to admit, and shall then operate as a denial of the facts not so admitted. As to time for joinder of issue, see Order .\.\il., t. .5. As to effect of joinder of issue ; see Order XX 11., r. 4. 18. Subject to the next following Rule and to Order XX.. a. Kttcaot gcncni general denial of an allegation of fact in a previous pleading shall be construed as a denial of the allegation, and of all the alleged circum- stances, whether of time, place, amount, or otherwise. As to specific denials, .see r. 10, snqtra. General denial, see r., 15, supra. Kffect of denial of contract, .see r. 19, infra. Denial in defence, see Order XX., rr. l-o. 19. When a contract, promise, or agreement, is alleged in any Effect of denial pleading, a bare denial of the same by the oppo.site party shall be ° construed only as a denial in fact of the express contract, promise, or agreement alleged, or of the matters of fact from which the .same may be implied by law. and not as a denial of the legality or sufficiency in law of the contract, promise, or agreement, whether with reference to any Act. or otherwise, or of the authority of any person by whom the contract, promise, or agreement, is alleged to have been made. 20. When the contents of a document are material, it is sufficient to J^'^.^^^g^ts ^^ ^e state the effect thereof as briefly as possible, without setting out the stated, whole or any part thereof, unless the precise words of the document or any part thereof are material. As to setting out document at ieiiL'th in demurrer, see Order XX I \'., r. ti. 21. When it is material to allege malice, fraudulent intention, ^'"'^^^f'. knowledge, or other condition of the mind of any person, it is suffi- cient to allege the same as a fact without setting out the circum- stances from which it is to be inferred. 22. When it is material to allege notice to any person of any fact, Notia-. matter, or thing, it is sufficient to allege the notice as a fact, unless the form or the precise terms of the notice, or the circumstances from which such notice is to be inferred, are material. 23. When any contract or any relation between any persons is to impUed contract be implied from a series of letters or conversations, or otherwi.se from a number of circumstances, it is sufficient to allege the contract or relation as a fact, and to refer generally to the letters, conversations, or circumstances, without setting them out in detail. And if in such case the person so ])leading desires to rely in the alternative upon more contracts or relations than one as to be implied from the cir- cumstances, he may state them in the alternative. 4 50 H. C. Rules. PLEADING GENERALLY Or. XVII. rr. 24-30. Statfd or settled account to ho allegwl. Presumptions of law. Points of law may be raised by pleadings. Dismissal of action. Technical Objection. When judgment pleaded. Striking out pleading where no reasonable cause of action or defence disclosed. 24. When the cause of action is a stated or settled account, the same must be alleged with sufficient particulars, but when a state- ment of account is relied on by way of evidence or admission of some other cause of action which is pleaded, the same shall not be alleged in the pleadings. As to not pleading evidence, see r, 1, supra. 25. A party need not in any pleading allege any matter of fact which the law presumes in his favour, or as to which the burden of proof does not lie upon him, unless it has first been specifically denied by the other party ; for example, the consideration for a bill of ex- change when. the plaintiff sues only on the bill, and not for the con- sideration as a substantive ground of claim. 26. Any party may raise by his pleading any point of law, and any point so raised shall, if not previously disposed of, be disposed of by the Justice who tries the action, at or after the trial : Provided that by consent of the parties, or by order of the Court or a Justice, made on the application of either party, the same may be set down for hearing and disposed of at any time before the trial. As to dismissal of action, see r. 27, infra. As to disposal of questions of law on demurrer, see Order XXIV. As to special case on questions of laA\, see Order XXXII. 27. If in the opinion of the Court or Justice the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, claim of damages, ground of defence, set-off, or cross-claim therein, the Court or Justice may thereupon dismiss the action or give or make such other judgment or order therein as is just. 28. No technical objection shall be made to any pleading on the ground of any alleged want of form. As to amendment of defects or errors, see H.C'.P. Act, sec. 23. No proceedings in High Court to be invalidated by formal defect or irregu- larity, see H.C.P. Act, sec. 24. As to setting aside proceedings for irregularity, see Order LVIL, r. 7. 29. When a judgment is pleaded the party pleading must, within ten days after demand by the opposite party, deliver to him a copy of the judgment, certified by the proper officer of the Court by which the judgment was given. In default of such delivery, the Court or a Justice may order the pleading to be struck out or amended. As to computation of time limited by this rule, see Order LIII. 30. The Court or a Justice may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or ground of defence, or that it shows that the action or defence is frivolous or vexatious ; and in any such case the Court or a Justice may order that the action be stayed or dismissed, or that judgment be entered as upon default of pleading, as may be just. See r. 31, it) fro. PARTICULARS. 51 H. C. Rules. Or. XVII. rr. 31-32. Or. XVIII. rr. 1-2. 31. The Court or a Ju.stice may at any stage of the proceedings J[^'^„|^^;'„* order to be struck out or amended any matter in any pleading which oti.cT cases, is unnecessary or scandalous, or which tends to prejudice, embara.ss, or delay the fair trial of the action ; and may in any sucli case order the costs of the application to be paid as between solicitor and client. As to strikiii}.' out a tlefeiue l»y \»ay of set olf or cros« claim, see r, 3, /iupra. At the request of a (lefendaiit, tl.e whole or j.art of his defeiue may be struck out, see Order XXV., r. 3. Where demurrer allowed to i)art of ] leadiii*.' that [lart decmel to he struck out, see Order XXIV., r. 11. As to ameudment of pleadiiiL'. see Order XX\11., r. 3, articuiars. under a Justice s order shall, unless the order otherwise provides, have the same length of time for taking any step in the action after the delivery of the particulars that he had at the return of the sum- mons. Save as in this rule provided, an order for particulars shall not. unless the order otherwise j)rovides, operate to stay proceedings, or to give any extension of time. As to power of Court to enlarge the time for taking any proceed iiitrs. see Order LMl.. r. (i. 52 H. C. Rules. PARTICULARS— CLAIM. Or. XVIII. rr. 3-4. Or. XIX. r. 1. Actions for damage by collision. Prdiiuinary acts to be filed. Opening acts. 3. In actions for damage by collision between vessels, unless the Court or a Justice otherwise orders, the plaintiff shall within seven days after the commencement of the action, and the defendant shall within seven days after appearance, and before any pleading is delivered, file in the Registry a document to be called a preliminary act, which shall be sealed up, and shall not be opened until ordered by the Court or a Justice, and which shall contain a statement of the following particulars : — (a) The names of the vessels which came into coUisoin, and the names of their masters ; (6) The time of the collision ; (c) The place of the collision ; {(i) The direction and force of the wind ; (e) The state of the weather ; (/) The state and force of the tide ; (g) The course and speed of the vessel when the other was first seen ; (h) The lights, if any, carried by her ; (i) The distance and bearing of the other vessel when first seen ; {k) The lights, if any, of the other vessel which were first seen ; [l) Whether any lights of the other vessel, other than those first seen, came into view before the collision ; (m) What measures were taken, and when, to avoid the collision ; (n) The parts of each vessel which first came into contact ; (o) What sound signals, if any, were given, and when ; Ip) What sound signals, if any, were heard from the other vessel, and when. The Court or a Justice may, on the application of either party, order the preliminary acts to be opened at any time and the evidence to be taken thereon without its being necessary to deliver any plead- ings ; but in that case, if either party intends to rely on the defence of compulsory pilotage, he may do so, upon giving notice thereof in writing to the other party, within two days from the opening of the preliminary acts or .within such further time as the Court or a Justice allows. The fee payable on tiliiif^ a preliminary act is 5 /-. 4. The preliminary acts may be opened as soon as the action has been set down for trial. As to entry of action for trial, see Order XXXIII., r. 10. Claim beyond indorsement. ORDER XIX. Statement of Claim. 1. When a statement of claim is delivered, the plaintiff may therein alter, modify, or extend his claim against any defendant who has appeared, without any amendment of the indorsement of the writ. {Note.—^ee Order XXXIII., Rule L). As to trial \\ithout pleading, see Order XVI., r. I. As to pleading generally, see Order XVII. As to amendment of writ, see Order XXVII., rr. 1, 2 As to statement of claim, see Order XXVII., r. 3. CLAIM. ■ 53 H. C. Rules. O r. XIX. rr. 2-3. 2. Every statement of claim shall state specifically the relief which tollf.Sifl^Uy the plaintiff claims, whether sinj^ly or in the alternative, and it shall -'a'-i not be necessary to ask for (general or other relief, which may always be given, as the Court or a Justice thinks just, to the same extent as if it had been asked for. And the same rule shall ap|)ly to any cro.ss- claim made by the defendant in his defence. As to general rules ni jileadiiig, see Order XVII. As to cross action, see Order XX., rr. 9, 10. 3, The delivery of statements of claim shall be regulated as |:^,^;'«""' "' follows : — (a) Subject to the jnovisions of Order XI., Rule 9, as to filing a statement of claim when the defendant does not ajjjjear. a statement of claim need not be delivered unless the de- fendant at the time of entering his appearance, or within ten days thereafter, gives notice in writing to the plaintiff or his solicitor that he requires a statement of claim to l)e delivered : {h) If a statement of claim has not been delivered, and the de- fendant gives notice requiring the delivery of a statement of claim, the plaintiff shall, unless otherwise ordered by the Court or a Justice, deliver it within six weeks from the time of his receiving such notice : (c) The plaintiff may deliver a statement of claim, either with the writ of summons or notice in lieu of writ of summons, or at any time afterwards, either before or after appear- ance, notwithstanding that the defendant has ai)]>eared and has not required the delivery of a statement of claim : Provided that, when a defendant has api)eared and has not required the delivery of a statement of claim, a state- ment of claim shall not, without the leave of the Court or a Justice, be delivered later than three months after the appearance has been entered : {d) When the plaintiff delivers a statement of claim without being required to do so, or the defendant unnecessarily requires a statement of claim to be delivered, the Court or a Justice, if it ai)])ears that the delivery of a statement of claim was unnecessary or im])roper, may make such order as to the costs occasioned thereby as is just. When a defendant fails to enter an aiipearaiue. iilaintitT. <>n filin,- received nor required the delivery of a statement of claim, "i^st "f voiuntao- deliver his defence, if any. within sixteen days after his appearance. unless the time is extended by the Court or a Justice. 8. When a Court or a Justice is of opinion that any allegation of Admissions, fact denied or not admitted by the defence ought to have been ad- mitted, the Court or a Justice may make such order as is ju-st with respect to any extra costs occasioned by the denial or failure to admit. 9. When a defendant relies upon any facts or circumstances cross-action, alleged in the pleadings as establishing a right of cro.ss-action. he must, in his defence, state specifically that he relies on them by way of cross-action. As to judgment in default of pleading, see Order XXVI. As to right of cross action, see Order X\'l I., r. .'{. 10. The plaintiff may set up. in reply to a defence by way of cross- Answer bv «.-,v action, any matter ari-sing out of the facts alleged in the defence of cross-action, which would be available to him as a defence if the defence were a statement of claim in an action again.st him. notwithstanding that the Teplv may in itself be in the nature of a cross-action. 11. When, in any action for a pecuniary demand, a set-off or J^jdgmo"' f""" cross-claim for a ])ecuniary demand is established as a defence against the plaintiff's claim, the Court or a Justice may, if the balance is in favour of the defendant, give judgemnt for the defendant for such balance, or may otherwise adjudge to the defendant such relief as he is entitled to upon the merits of the case. Pica In 12. No defence shall be pleaded in abatement. obatinunt. As to application to strike out or substitute a party, see Order II., r. 10. 56 H. C. Rules. PAYMENT INTO COUET. Or. XXL rr. 1-5. ORDER XXI. Payment into Court. Defendant may pay money into Court with or without admitting lialiilitv. 1. In an action to recover a debt or damages, the defendant may, before or at the time of delivering his defence, or at any later time by leave of the Court or a Justice, pay into Court a sum of money by way of satisfaction, which shall, unless otherwise stated, be taken to admit the cause of action in respect of which the payment is made. (a) Or he may pay money into Court in respect of any cause of action, with a defence denying liability in respect thereof ; in which case the money so paid into Court shall be subject to the provisions of Rule 7 of this Order. As to payment into Court being statefl in defence, see r .3, injrct. As to notice of payment being served on plaintiff, see r. 4, infra. As to payment into Court in actions in respect of disputed contracts, see Order XLIIL, r. 4. (a) Held by the High Court that w here, in an action of compensation for land resumed by the Commonwealth, issue has been joined upon a plea of payment into Court w ithout denial of liability, the only issue is whether the amount paid in is sufficient, and the plaintiff is entitled to that sum in any event : Spencer v. Com- monivenlth, (.o C.L.R. 418 [1906]). Defence of tender. 2. When a defence sets up a tender before action, the sum of money alleged to have been tendered must be paid into Court before the deliverv of the defence. Defence to state payment. Beceiiit to accompany. 3. Payment into Court shall be signified in the defence, and the claim or cause of action, if any, in satisfaction of which the payment is made shall be specified therein. A duplicate receipt for the money delivered with the defence. paid into Court shall be Notice of payment. Receipt. 4. If the defendant pays money into Court before delivering his defence, he must serve upon the plaintiff a notice specifying both the fact that he has paid in the money and also the cause of action in respect of which the payment has been made. A duplicate receipt for the money paid into Court shall be delivered with the notice. Plaintiff may accept in sati-jfaction. 5. When payment into Court is made before delivery of a defence, the plaintili may, within eight days after notice of the payment, and when the payment is first signified in a defence the plaintiff may at any time before joining issue, accept in satisfaction of the cause of action in respect of which the payment has been made the sum so paid in, in which case he shall give notice of such acceptance to the defen- dant, and shall be at liberty, in case the whole action is thereby satis- fied, to tax his costs, if he is entitled to any, after the expiration of PAYMENT INTO COURT. 57 H. C. Rules. Or. XXL rr. 6-7. four days from the service of such notice, unless the Court or a Justice otherwise orders, and in case of non-payment of the costs within four days after taxation he may sign judgment for his costs so taxed. («) As to time for joining issue, see Order XXI I., r. .'5. As to computation of time limited by this rule, see Order Llll. (a) Held by the High Court that where, in an action for compensation for land resumed by the Commonwealth, issue has been joined upon a plea of payment into Court without denial of liabiMty, tlie only issue is whether tlie amioii whole of any pleading, so far as it relates to a separate cause of action, on d.-nmmr II 1 11 1 ,-. 1 11 ■ 1-1 >^ .L il .L gOll't! '" «llolc IS allowed or overruled, the Court shall give such judgment as to that action, cause of action as upon the ))leadings the successful party appears to be entitled to, and, if the judgment is for the defendant with respect to the whole action, the plaintiff shall pay to the defendant the costs of the action, unless the Court otherwi.se orders. As to the power of the Court or a Justice to amend generally, t^ee H.C.P. Act, ss. 23, 24, and Order XXVI I. As to costs generally, see Order LIW 11. When a demurrer to any pleading or claim or part of a pleading wi're ^icmumT or claim is allowed in any case not falling within the last preceding a pi.adinp that Rule, then, subject to the power of amendment, the matter demurred dl^ui^^'tohc to shall as between the parties to the demurrer be deemed to be struck struck nut. out of the pleadings, and the rights of the parties shall be the same as if it had not pleaded. 12. When a demurrer is overruled, the Court may make such order. Demurrer and u])on such terms as the Court thinks fit, for allowing the demurring ovemiied with ' • 1 r 1 11- I'll?- li'avcto plead. party to raise by further pleading any case which he desires to set up in opposition to the matter demurred to. 13. A demurrer shall be set down for argument by filing a copy of Korm of entr>- the pleadings so far as they relate to the matters of law raised by the ''■"■ "rK'>'"»ent. demurrer, and delivering to the Registrar a memorandum of entry for argument. As to the right of either party to .set demurrer dow n for argument immediately after service of same, see r. 7, supra. As to hearing of demurrer by a single Justice or Full Court, see r. 14, injni. As to indor.sement on demurrer of notice requiring demurrer to be set do«n for argument, see Order XVII., r. 32. 14. When the party entering a demurrer for argument enters it when dcmurror to be heard before a single Justice, and any other party desires it to required be heard before a Full Court in the first instance, he may, within h.ani before Full four days after receiving notice that the demurrer has been so entered, *"""^- deliver to the Registrar and to the op])osite party a memorandum to that effect, and the demurrer shall thereu])on be deemed to have been entered to be heard before a Full Court in the first instance. 62 H. C. Rules. DEMURRER— DISCONTINUANCE. Or. XXIV. r. 15. Or. XXV. rr. 1-3. Pleadings for Justices. If the action is pending in a District Registry, the pleadings shall be forthwith transmitted to the Principal Registry, unless a sitting of a Full Court is appointed to be held within sixty days at the place where the District Registry is situated. After the decision of the Full Court the pleadings shall be returned to the District Registry with a certificate of the judgment or order of the Full Court. As to computation of time limited by this rule, see Order LIU. 15. Four days at least before the day for which a demurrer is set down for argument, (a), the party setting it down shall leave at the chambers of the Justice, or at the chambers of each of the Justices who are to sit on the hearing of the argument, a copy of the pleadings so far as they relate to the matters of law raised by the demurrer. As to computation of time limited by this rule, see Order LIII. (a) The pleadings must be left at the Chambers of the Judge, four days at least before the demurrer is set down for argument. On demurrers, t\\o counsel will be heard : Bond v. Commonuealth, (1 C.L.R. 13 [1903]). ORDER XXV. Discontinuance of action before defence. Not otherwise except by leave. Court may allow a defendant to discontinue his defence. Discontinuance. Etc. 1. The plaintiff may, at any time before receipt of the defence of any defendant, or after the receipt of the defence, but before taking any other proceeding in the action against that defendant other than an interlocutory application, by notice in writing, wholly discontinue his action against that defendant, or withdraw any part of his alleged cause of action against that defendant, and thereupon he shall pay that defendant his costs of the action, or, if the action is not wholly discontinued, the taxed costs occasioned by the matter so withdrawn. Such discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action for the same cause. The discontinuance of an action by the plaintiff shall not prejudice any action consolidated therewith, see r. 4 infra. As to Mithdra\\al of cause by consent, see r. 5, infra. As to entering judgment for costs on discontinuance, see r. 6, infra. As to subsequent action when costs of prior action not paid, see Order XLIV., r. 5. As to security for costs where second action instituted for same cause, see Order XX VIII., r. 10. The fee payable on filing a notice of discontinuance is 2 /6. 2. Save as in this Order provided, a plaintiff may not withdraw the record or discontinue the action without leave of the Court or a Justice : But the Court or a Justice, may, before, or at, or after, the hearing or trial, upon such terms as to costs, and as to bringing any other action, or otherwise, as are just, order the action to be dis- continued, or any part of the alleged cause of action to be struck out. 3. The Court or a Justice may, in like manner, and with the like discretion as to terms, upon the application of a defendant, order the whole or any part of his defence to be withdrawn or struck out ; but a defendant may not withdraw his defence, or any part thereof, with- out such leave. DISCOXTINUANX'E— DEFAULT. 63 H. C. Rules. Or. XXV. rr. 4-6. Or. XXVI. rr. 1-2. 4. The discontinuance of any action by the plaintiff shall not pre- ^^"[^^y^t,^ judice any action consolidated therewith. actions. As to consolidation of actions, see Order .\L\'. 5. When a cause has been entered for trial, it may be withdrawn by withdrawal hy either the plaintiff or the defendant, upon ])rodu{tion to the proi)er '"""**" ' officer of a con.sent in writing, signed by the parties. 6. A defendant may enter judgment for the costs of the action if it Entering is wholly discontinued against him, or for the costs occasioned by the dLcwJt^inu^nce. matter withdrawn if the action is not wholly discontinued, if such respective costs are not paid within four days after taxation. As to defendants" rijilit to costs on discontinuance of action, see r. 1, nujtro. As to staying of subsequent action until .such cgsts of prior actions are jiaid, see Order XLIV., r. 5. As to computation of time limited by tiiis rule, see Order LIU. ORDER XXVI. Default of Pleading. 1. If a plaintiff, being bound to deliver a statement of claim, does D.>iauit of not deliver it within the time allowed for that purpose, the defendant .'illjlv'.rfng" may, at the expiration of that time, apply to the Court or a Justice ^tatomtnt of to dismiss the action with costs for want of prosecution ; and on the hearing of the application the Court or Justice may order the action to be dismissed accordingly, or may make such other order, and on such terms, as is just. As to the time limited for deliver}' of statement of claim, see Order XIX., r. .3. As to dismissal of action for non-compliance with order for discovery, see Order XXIX., r. 19. Or for failure to comply with order to produce books, see H.C.P. Act, s. 17. Or upon failure to give notice of trial, see Order XXXlll., r. 7. Or in default of plaintiff's appearance at trial, .see Order XXXlll., r. 17. As to fee payable on entering judgments, see .Scale of Fees, sub-title "' Urau ing Up and Entering Judgment." 2. If the plaintiff's claim is for a debt or liquidated demand only, uquidated and any defendant fails to deliver a defence within the time allowed (•'^maud. for that purpose, the ])laintifT may. at the exi)iration of that time, enter final judgment against him for the amount claimed, together with interest at the rate claimed by the statement of claim as the rate agreed upon, if any, or, if no rate is claimed to have been agreed upon, at the rate of five per centum per annum to the date of the judgment, with his costs of action. As to effect of judgment h\ (Iclault against one of several defendants, see r. 12 infra. As to entry of judgment for debt or liquidated demand, w here defendant fails to enter an appearance, see Order XI., r. .i. 64 H. C. Rules. DEFAULT. Or. XXVI. rr. 3-6. Deteution of goods : damages. 3. If the plaintiff's claim is for detention of goods and pecuniary damages, or either, and all the defendants make default as mentioned in Rule 2 of this Order, the plaintiff may enter interlocutory judgment against the defendants, and a writ of inquiry may issue to assess the value of the goods and the damages, or either, as the case may be. But the Court or a Justice may order that, instead of issuing a writ of inquiry, the value and the damages, or either, shall be ascertained in any other way which the Court or Justice directs. As to judgment in such cases in default of appearance, see Order XL, r. ."). As to Avrits of inquiry and references as to damages, see Order XXXIIL, r. 25, et seq. Several defendants. liiquidated itemand and detention of TOods and damages. 4. When in any such action as in the last preceding Rule mentioned there are several defendants, of whom one or more make default as mentioned in Rule 2 of this Order, and the others do not make default, the plaintiff" may enter interlocutory judgment against the defendants so making default. And in that case, the value of the goods and the damages, or either, as the case may be, may be assessed, as against the defendants suffering judgment by default, at the same time as the trial of the action or issues therein against the other defendants. But the Court or a Justice may order that, instead of proceeding to the trial, the value and the damages, or either, shall be ascertained by a writ of inquiry, as directed by the last preceding Rule, or in any other way which the Court or Justice directs. As to judgment in such cases in default of appearance, see Order XL, r. 6. As to effect of judgment by default against one of several defendants, see r 12, infra. As to writs of inquiry and references as to damages, see Order XXXllL, r. 25, et seq. 5. If the plaintiff's claim is for detention of goods and pecuniary damages, or either, and also for a debt or liquidated demand, and any defendant makes default as mentioned in Rule 2 of this Order, the plaintiff may enter final judgment against him for the debt or liquidated demand, with interest and costs, and may also enter in- terlocutory judgment for the value of the goods and the damages, or either, as the case may be, and may ppoceed as provided in Rules 3 and 4 of this Order. As to signing judgment in such cases in default of appearance, see Order XL, Defence to part claim only. 6. If the plaintiff's claim is for a debt or liquidated demand, or the detention of goods and pecuniary damages, or for any of such matters, and the defendant delivers a defence which purports to offer an answer to part only of the plaintiff's alleged cause of action, then, if the un- answered part consists of a separate cause of action, or is severable from the rest, as in the case of part of a debt or liquidated demand, the plaintiff may, by leave of the Court or a Justice, enter judgment, final or interlocutory as the case may be, for the part unanswered : Provided that, when there is a cross-claim, execution on the judgment in respect of the plaintiff's claim shall not issue without leave of the Court of a Justice. DEFKXCE— DEFAULT. 65 H. C. Rules. Or. XXVI. rr. 7-11. 7. In all other actions than those in the i)rece(lins Rules of this ^J:^""!* '" °*»'" Order mentioned if the defendant makes default in delivering a defence the plaintiff mav set down the action as against him on motion for judgment, and such judgment shall be given as upon the statement of claim the plaintiff appears to be entitled to. As to aj)pli.'mpiit in (U-faiilt ..f any suI.m- iiient pleadings, see r. 10, ('«/r«. As to motions for ju(l>;nient, see Order XXXVl. The fee payahle on filing a notice of motion is 10 -. On drawing up and entering judgment under this rule, 10 -. 8. When, in any such action as mentioned in the last preceding one of several Rule, there are several defendants, then, if any defendant makes defon^nts in default in delivering a defence, the i)laintiff may, if the cause of action is severaljle, set down the action at once on motion for judgment against that defendant, or may in any case set it down on motion for judgment against him at the time when it is entered for trial or set down on motion for judgment against the other defendants. In the first case the Court may adjourn the motion to come on at the time, last mentioned. As to effect of judgment by default against one of several defendants, see r. 12, in fro. As to motions for judgment, see Older XXX\1. The fee payable on filing notice of motion is 10/-. On entering judgment, 10,'-. 9. If the plaintiff does not deliver a reply, or any party does not ^■Jj°^*p°*J'j'^**'"«* deliver any subsequent pleading, within the period allowed for that °" purpose, the pleadings shall be deemed to be closed at the expiration of that period, and all the material statements of fact in the pleading last delivered shall be deemed to have been admitted. As to times limited for the delivery of pleadings, see Orders Xl.X., r. :5 : .\X., rr. 6, 7 : XXII., rr. 1, 3 ; XXVII., r. (5. As to close of pleadings by joinder of issue, .see Order XX 11., r. 4. As to judgment on admission in pleadings, see Order XXX., r. ."}. 10. In any case not hereinbefore provided for. if any jiarty makes j„, iiifnt. As to st't (.If <,'e;ierally, see Or.lcr.s Wl I., r. .i : .\X., r. 11. As to time alli>\\ c:! for plcadin;: to ropiy, sec Oi'.lcr XXII., r. .'i. As to comiHitatioii of liiiif limited liy this ruli*, .si-e Order Llll. No amendment of i^leadi ijis allo\\eil in \ac-ation unless direited by the C'lmrt or a Justice ; see Older Llll.. i. '.i. 5. When anv partv has amended his ])leading or indorsement i)i-Jiii«>»any this rule, see Order Llll. 7. In any case not provided for by the preceding Rules of this Aincnamont i,y Order, ap])lication for leave to amend any pleading or indorsement may be made by either ])arty to the Court or a Justice, or to the Justice at the trial of the action, and the amendment may be allowed U])on such terms as to costs or otherwise as are just. 8. If a |)artv who has obtained an order for leave to amend any Failure to proceeding does not amend accordingly within the time limited for that "J^cr " purpose by the order, or if no time is thereby limited then within four- teen days from the date of the order, the leave to amend shall, on the ex])iration of the time so limited, or of such fourteen days (as the ca.se may be), cease to have effect, unle.ss the time is extended by the Court or a Justice. As to the computation of time limited by this rule, see Order Llll. As to the power of the Coiu't to enlarjtje time, see Order Lll I, t. i«. 9. Clerical mistakes in iudgments or orders, or errors ai)i)earing Oricai mutakps ^, . , . . , • 1 ^ I 1- ^ "^ and accidental therein and arising from any accidental slij) or omission, may at any omUsion*. time be corrected In- the Court or a Justice on motion or summons, and an appeal shall not lie fioin an order directing such amendment. A-; .-> power to am^iid m'ln'ially, sec H.C'.P. .\rt,ss. •j:5,2( ; r. \ , .<>i pr't. As to relief against ju igmtvits, see Order XL. 68 H. C. Rules. SECURITY. Or. XXVIII. rr. 1-6. ORDER XXVIII. Security. General form of security. Title : Attestation. Form of bond for security. Two sureties required. Security to be filed of record. Enforcement of security. 1. Security in General. 1. Whenever in any cause or matter in the High Court security is required to be given by or on behalf of any party, the security shall, unless otherwise required by law or by these Rules, or unless otherwise directed by the Court or a Justice, be given by an instrument in writing signed by the person to be bound, whether as principal or surety, and setting forth that he submits himself to the jurisdiction of the Court, and consents that, upon the happening of the event specified in the instrument, judgment may be signed against him for the amount for which the security is given. As to fees payable '\\ith respect to securities, see Scale of Fees, sub-title " Securities." 2. The instrument shall be entitled in the cause or matter in which the securitv is given, and shall be executed by each person to be bound in the presence of a Registrar or a commissioner of affidavits, who shall satisfy himself that the person signing it understands the liability which he incurs and that the liability may be enforced against him in a summary way. The sureties may execute the instrument either together or separately. A commissioner shall not attest a security on behalf of any person for whom he, or any person in partnership with him, is acting as solicitor or agent. 3. When a bond is ordered to be given as security, it shall, unless the Court or Justice otherwise orders, be given to the party for whose benefit is is given. 4. The security shall, unless otherwise directed by Rules of Court, or unless otherwise ordered by the Court or a Justice, be given by two sureties, who shall be approved by the Registrar of the Registry in which the cause or matter is pending, and each of whom shall be bound in the full amount of the security. 5. Every instrument of security made under this Order shall be filed, and shall thereupon become a record of the Court. As to time of filing, see r. 7 injra. The fee payable on filing an instrument of security is 5/-. 6. Anv party claiming to be entitled to enforce the security against any person by whom it is signed may apply to a Justice by summons in the cause or matter in which the security is given for an oi;der that judgment be entered against the person by whom the security is given in accordance with his submission, and the Justice may order that judgment be entered accordingly in favour of the party for such amount as is just. SECUKITV 69 H. C. Rules. Or. XXVIII. rr. 7-12. 7. No such instrument, and no recognisance or other security of J,^ I'uonth, '''*'*"' anv kind, shall be filed after the expiration of .si.\ months from the time of its execution. exce])t by order of the Court or a Justice, made upon notice to all the persons by whom the security was executed or their representatives. 8. Anv j)arty directed to give .security may give it by paying the ^'.^fi^^'foVeu*^, amount for which security is to be given into Court to a sej)arate st-inrity. account in the cause or matter, to be called the " Security Account," and to abide the order of the Court, and giving notice of the ])ayment to the party for who.se benefit the security is to be given. The notice shall be accompanied by an original receipt for the money paid into Court. As to payment into Court, see Order XXI. Security for Costs. 9. A plaintiff ordinarily resident beyond the Commonwealth may Security for be ordered to give security for the costs of the cau.se, whether he is or *'**'' ^ ** ^ *'° is not temporarily within the Commonwealth. As to security by receiver, see Order XLIII., rr. 12, 13. As to security for costs on issue of writ of certiorari, see Order XLXIF.. r. lo. Security for costs on filin<; information of Quo vnrranto, see Order XL\"1I., r. 33. As to when lime for giving; securitv for costs not to be reckoned, see Order LIIl.,r. >. As to security generally on appeals to the High Court, see H.C.P. Act, ss. 35, 36. As to giving security for costs of appeal from a State Supreme Court appealed from, to High Court, see Part 11., Sec. 3, r. 12. As to amount of security to be given, see rr. 11, 12, injra. As to the time at which an application for security for costs should be made, see r. 13 infru. As to power of Court or a .luslice to require security in any case, see r. 17, inlrd. As to costs generally, see Order LI\'. When time for giving security for costs not to be reckoned ; see Order LI 11. 10. When a jjlaintiff, who has been ordered to ])ay the defendant '^f<'o"^_^';.|'°|'. the costs of a cause whether in the High Court or another Court, institutes a fresh cause in the High Ci-urt against the same defendant in resjject of the same, or substantially rhe same, cause of action, the Court or a Justice may order him to give a security tor the costs of the fresh cause. As to staving subsequent action until costs of first action paid, see Order XLIV., r. .1. 11. When security for costs is ordere.l to l)c given, the .security ^.^'O- •"' '•<^ shall be of such amount and shall be given at such tunes, and in su^h manner, as the Ccmrt or a Justice directs. 12. The amount of security sliall, unless tlic ( nurt or a Justice ;'^;.;;;';;'j'"f other \vise orders, be Fifty pounds. As to amount of security, see H.C.P. Act., s. 3.3. As to increase or decrease of amount on appeal, see H.C.P. Act, s. 3('>. 70 H. C. Rules. SECURITY AND DISCOVERY. Or. XXVIII. rr. 13-17. Or. XXIX. r. 1. Time for apiilication. 13. An application to compel the plaintiff in an action to give security for costs must, in ordinary cases, be made before issue joined : But the Court or a Justice may, under special circumstances, allow the application to be made at any later time. staying proceedings. Disi)osal of money paid into court. 14. When a party is ordered to give security for costs, the action, or other proceeding in respect whereof the security is required to be given, shall be stayed until the security is given, unless the Court or a Justice otherwise orders. As to staying proceedings generally, see Order XLR'. As to when time for giving security for costs not to be reckoned, see Order LIII., r. .5. 15. In any case in which money has been paid into Court as security for costs, when the cause has been finally disposed of, if the party by whom the payment i!ito Court was made is adjudged to pay the costs of the cause, or any balance in respect of the costs of the cause, or any other balance of costs in the cause, to any parties for whose security the payment was made, the amount standing to the credit of the " Security Account " in the cause shall, unless the Court or a Justice otherwise orders, .be liable to be applied in payment of the costs so ordered to be paid to those parties. In any other case the party by whom the payment into Court was made shall be entitled to have the sum paid out to him. As to payment of moneys into Court, see Order XXI. Registrar to certify at con- clusion of cause. 16. When a cause has been finally disposed of by consent or other- wise the Registrar shall, on the application of any party to the cause, and on being satisfied that that party is entitled to have any money standing to the credit of the " Security Account " paid out to him, give him a certificate to that effect. 17. Nothing in the eight last preceding Rules shall be construed to aft'ect the power of the Court or a Justice to require security for costs to be given by any party to any cause or matter in any case in which it is just that such security should be given. As to giving security by plaintiff ordinarily resident beyond the Common- wealth, see r. 9, supra. ORDER XXIX. Discovery (a) and In.spection. (a) Held by the High Court that in a civil action for penalties, in the absence of statutory provision to the contrary, the plaintiff is not entitled to an order for dis- covery of documents against the defendant. This rule applies equally to actions by the Crown and actions by a common informer : Bex v. The Associated Northern Colleries, (11 C.L.R. 738 [1910]). Diseovery by interrogatories 1. In any cause the plaintiff or defendant may at any time befoie the p'aintiiT is in a posirion to ;.iive notice of trial, or at any later time by leave of the Court or a Justice, deliver interrogatories in writin'/ for the examination of the opposite parties or any of them ; and the Dl S('( ) \K K V A M ) 1 N S I • K( 'T 1 ( i X . 71 H. C. Rules. Or. XXIX. rr, 2-5. interrofiatori<-s when delivered shall have a note at the foot thereof, stating which of the interrogatories each of the parties is required to answer : Provided that no j)arty shall deliver more than one .set of interrogatories to the same j)arty without a special order for that pur- pose. Interrogatories wiiich do not ichite to any iiiiittfis in (|uesti(jn in the cause shall be deemed irrelevant, (a) notwithstanding that they might be admissable on the oral cro.ss-examination of a witness. As to power of High Court or .Jiistii c to order tin- i-xamira: ion of any person on interrogatories, see H.C.P. Act, s. 1!>. As to i'lterrogatories on summons foi- diiections, .see Order .W'., r. '2. Interrogatories may he adniinisteicd to an accused jierson loucl.ing his (on- templ : see Orcler XLIX., r. (i. {(i) Held by the High Court tliat an\- facts leievarit to the matter in issue may be the subject of interrogatories : Potter's Sulphide Ore Treatment, Ltd. v. Sulphide Corporation, Ud-AV-i C.L.R. KM [litOI]'. 2. In adjudging the costs of the cause, inquiry shall, at the instance costs of ■of any party, be made into the ))ropriety of exhibiting any interro- gatories, and if it is the opinion of the Court or a Justice upon the report of the taxing officer, or without such report, and either with or without an ai)plication for inquiry, that the interrogatories have been ■exhibited unreasonably, vexatiously, or at improper length, the co.sts occasioned by the interrogatories and the answers thereto shall be paid in any event by the party in fault. 3. If any party to a cau.se is a corporation or a joint stock comi)any, c.jr|N)rati..n-. or any body of persons empowered by law to sue or be sued, whether in its own name or in the name of any officer or other ]ier.son, any opf)osite jiartv mav apply for an order allowing him to deliver interro- gatories to be answered by some niember or officer of the cor])oration. company, or body, on their behalf, and an order may l)e made ac- cordingly. As to discovery by corporations, see r. f) injra. 4. Interrogatories shall ])e answcicd bv affidavit to Ite tiled within vn-v.ri.y ■ 11 <• II- ri-" ■ -^i- 1 ;iitiil:«\ it . twenty-eight days after delivery of the interrogatories or wit Inn sucli other time as the Court or a Justice allows. A copy of the affidavit shall be delivered to the interrogating party on the same dav on which it is filed. As to using interrogatories at trial, .see r. 22 injra. As to computation of time limiled l>y this i nie, sec ( iidir 1,111. 5. An objection to answering any interrogatorv. whether on the oiontions t.> ground that it is scandalous or irrelevant, or is not delivered bono fide .,iVwer. for the j)urpose of the cau.se, or that the matters inquired into are not sufficiently material at that stage of the cause, or on any other ground, may be taken in the affidavit. 72 H. C. Rules. DISCOVERY Or. XXIX. rr. 6-10. Order to answer or answer further. Discovery by corporations. Affidavit of documents. 6. No exceptions shall be taken to any affidavit in answer, but the sufficiency or otherwise of any such affidavit objected to as insufficient shall be determined by the Court or a Justice on motion or summons. As to order to ans\\ er or further answer, see r. 7 infra. 7. If any party interrogated omits to answer, or makes an in- sufficient answer to any interrogatory, the party interrogating may apply to the Court or a Justice for an order requiring him to answer, or to make further answer, as the case may be. An order may there- upon be made requiring him to answer, or make further answer, either by affidavit or upon oral examination, as the Court or Justice directs. As to A\hat interrogatories are to be answered and in \\ hat manner, see r. 1 -fujua As to using answer at trial, see r. 22 infra. 8. Any party to a cause, may without any affidavit, apply to the Court or a Justice for an order directing any other party to the cause to make discovery (a) on oath of the documents which are or have been in his possesseion or power, relating to any matters in question in the cause. On the hearing of the application the Court or Justice may make such order, either generally or limited to certain classes of documents, as in their discretion seems fit, or may adjourn the application : Provided that discovery shall not be ordered, if and so far as the Court or Justice is of opinion that it is not necessary, either for dis- posing fairly of the cause or for saving costs. As to affidavit of documents and filing and delivery, see r. 10 infra. As to effect of failure to comply w ith an order for discovery, see r. 19 infra. («) An application for discovery of documents made after issue joined must, in general, be made upon notice to the other party : Ward v. C. W. McFarlane of this Order, upon the oath of some member or officer, of such of the docu- ments in the possession or power of the party relating to any matter in question in such cause, as the Court or Justice thinks fit ; and the Court or Justice may deal with such documents, when produced, in sucli manner as is just. « Rule 9 refers to a Corpoialion, a Joint Stock Company, or any l)o(iy of persons enipow ered to sue or be sued. As to production of documents for inspection, see rr. 12 ft srq, infrii. As to order on refusal to jiroduce or allow inspection of documents, see r. 14 infra. As to non-conipliaiu c witli older for discovery, see r. 19 infra. As to order for attentlanee of person to produce documents, see Order .\XXI\'., r. 2. As to attendance of w itness undei' sulipoena to produce documents, see Order XXXIV., r. 12. As to order by Court to produce books and writings, see H.C.P. Act. s. 17. 12. Any party to a cause may, at any time, by notice in writing, inspection of require any other party in whose pleadings, particulars, or amaayits, referred to in reference is made to any document, to produce the document for the irtjfia',"^^ "■" inspection of the party giving the notice, or of his solicitor, and to permit them to take copies thereof. Any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in the cause, unless he, being a defendant in the cause, satisfies the Court or Justice that the document relates only to his ow-n title, or unless he satisfies the Court or Justice that he had some other sufiicient ground for not complying with the notice. As to order for iiisjiection of documents, .see r. 14 infra. As to notice to admit facts-or documents, see Order XXX. r. 2. 13. A party to whom notice to ]iro(luce documents is given shall. ^)"'^,f,";).,Vo**:'' within two days from the receipt of the notice, if all the documents |J'y_'||'/'«' '™^<^ therein referred to have been set forth by him in the affidavit made under Rule 10 of this Order, or within four days from the receipt of such notice, if any of the documents referred to in the notice have not been set forth by him in any such affidavit, deliver to the pa»ty giving the notice to ])roduce a notice stating a time within seven days from the delivery thereof at which the documents, or such of them as he does not oliject to produce, may be insjjected at the office of his solicitor, or in the case of bankers" books or other books of account or books in constant use for the i)uri)Oses of any trade or business, at their usual place of custody, and .stating which, if any. of the docu- ments he objects to produce, and on what ground. As to order for inspection see r. 14 infra. As to computation of times limited by this rule, see Order 1. 11 1. 74 H. C. Rules. DISCOVERY. XXIX. rr. 14-18. Onipr for iiisitection. Special or.lcr. Verified copies. Privilejte. 14. If a party served with notice under the last preceding Rule omits to give such notice of a time for inspection, or objects to give inspection, or offers inspection elsewhere than at the office of his solicitor, the Court or Justice may, on the application of the ]iarty desiring it, make an order for inspection in such place and in such manner as they think fit. As to order of verified entries in lien of inspection, see r. 16 infra. As to determination of an issue or question before the decision upon the ripht to discovery or inspection, see r. 18 injnt. 15. The Court or a Justice may, at any time, on the application of any party to a cause, and whether an affidavit of documents has or has not already been ordered or made, make an order requiring any other party to the cause to state upon affidavit Vv-hether any specific docu- ment to be specified in the application is or has at any time been in his possession or power ; and, if it has been, but is not then, in his possession, when he parted with it, and what has become of it. Such application shall be made on an affidavit stating that, in the belief of the deponent, the party against whom the a])plication is made has. or has at some time had, in his possession or power the docu- ment specified in the ajij^lication, and that it relates to matters in question in the cause. As to affidavits of documents, see r. 10 supra. 16. When inspection of any business books is applied for, the Court or a Justice may, if they think fit, instead of ordering inspection of the original books, order a copy of any entries therein to be furnished and verified by the affidavit of some person who has examined the copy with the original enties. Every such affidavit shall state whether or not there are in the original book any and what erasures, interlineations, or alterations ; Provided that, notwithstanding that such a coj)y has been supplied, the Court or a Justice may order inspection of the book from \\hich the copy was made. 17. When, on an application for an order for inspection, objection is made to the production of any documents, either on the ground of privilege or on any other ground, the Court or a Justice may inspect the document for the purpose of deciding as to the validity of the objection. As to privilege, see notes to rr. 11, 14 vupra. Premature discovcrv. 18. If a party from whom discovery of any kind or inspection is sought objects to the discovery or inspection, or any part thereof, the Court or a Justice may, if satisfied that the right to the discovery or inspection sought depends on the determination of any issue or question in dispute in the cause, or that for any reason it is desirable that any issue or question in dispute in the cause should be deter- mined before deciding upon the right to the discovery or inspection, order that the issue or question shall be first determined, and may reserve the question as to the discovery or inspection. As to order for insj e -tion, see r. 14 supra. DISCOVERY. 75 H. C. Rules. Or. XXIX. rr. 19-24. 19. If any party fails to comply with an order to answer interroga- >>■"'>-• <"'M'iiance tones, or for discovery or inspection of documents, he shall be liable -. service to found an application for an attachment for disobedience to the order. But the ])arty against whom the application for an attachment is made may show in answer to the a])plication that he has had no notice or knowledge of the order. As to neglect by solicitor to give notice of trial to his client, sec r. 21 infm. 21. A solicitor upon whom an order against any ])arty for inter- ^^|[^^l"||^,'^*' rogatories or discoverv or inspection is served under the last preceding Rule, and who neglects without reasonable excuse to give notice thereof to his client, shall be liable to attachment. As to attachment generally, .see (^rdcr XLI. 22. Anv partv mav, at the trial of a cause, or anv i.ssue in a cause, i-int! answers to ..•'••' ^ . " r ^1 ■- iiitirronatosies at use m evidence anv answer, or any part ot an answer, ot the opjjosite trial. party to anv intei-rogatory without i)utting in the whole of the answer, or tiie answers to other interrogatories ; Provided that in any case the Justice may look at the whole of the answers, and if he is of opinion that any other answer or part of an answer is so connected with the answer put in that the last-mentioned answer ought not to be used without the other, he may direct such other answer or i)art of an answer to be put in by the })arty tendering the answer. 23. In an action bv or against the Marshal in respect of any matters nucovcry .icainst connected with the execution of his othce, the Court or a Justice may, ' "'^"■'' ' on the application of either jiarty, order that the affidavit to be made in answer either to interrogatories or to an order for discovery shall be made 1)V the officer actually concerned. As to powers and duties of the Marshal and his otticers, see Order LIT. As to actions by and against the Marshal, see H.C.P. Act, s. 31. 24. This Order shall aj.ply to infant plaintitfs and defendants, and i^.flll'.'t,*'' "'''''^' *" to their next friends and guardians ad litem. As to infant plaint'ffs and defendants, see Order 11., r. 12. 76 H. C. Rules. ADMISSIONS— ISSUES— INQUIRIES. Or. XXX. Or. XXXI. r. 1. ORDER XXX. Notice of •admission of facts Notice to admit facts or documents. Costs of refusal or neglect to admit. ,1 udgment or (irdi^r upon a Imissions of facts. Admissions. 1. Any party to a cause may give notice, by his pleading, or other- wise in writing, that he admits the truth of the whole or any part of the case of any other party. As to facts alleged in pleading being taken as admitted if not denied, see order XVII., r. 10. As to costs where neglect to make proper admissions in statement of defence, see Order XX., r. 8. 2. Any party to a cause may, by notice in writing, call upon any other party to admit any specific fact, or any document, saving all just exceptions ; and, in case of refusal or neglect to admit after such notice, the costs of proving the fact or document shall be paid by the party so neglecting or refusing, whatever the result of the cause may be, unless at the trial or hearing the Court or Justice certifies that the refusal to admit was reasonable ; and no costs of proving any docu- ment shall be allowed unless such notice is given unless the omission to give the notice is, in the opinion of the taxing officer, a saving of expense. Provided that any admission made in pursuance of such notice shall be deemed to be made only for the purposes of the particular cause or issue, and shall not be used as an admission against the party on any other occasion, or in favour of any person other than the party giving the notice : Provided also, that the Court or a Justice may at any time allow any party to amend or withdraw any admission so made on such terms as are just. As to notice to produce documents, see Order XXIX., r. 12. 3. When admissions of fact have been made in a cause, either on the pleadings or otherwise, any party may, at any stage of the cause, apply to the Court or a Justice for such judgment or order as upon the admissions he is entitled to, without waiting for the determina- tion of any other question between the parties ; and the Court or a Justice may, upon such application, make such order, or give such judgment, as is just. As to judgment in default of pleading, see Order XXVI. As to failure to deliver reply or plead to subsequent pleadings being deemed an admission of the facts contained in pleading last delivered, see Order XXVI., r. 9. The fee payable on hearing a motion for judgment is 10/-. The fee on filing any pleading or other document is 2 /6. The fee on drawing up and entering judgment is 10 /-. ORDER XXXI. Issues may be preiiared and settled. Issues, Inquiries, and Accounts. 1. When in any cause it appears to the Court or a Justice that the issues of fact in dispute are not sufficiently defined, the parties may be directed to prepare issues, and the issues shall, if the parties differ, be settled by the Court or a Justice. As to trial of issues of fact without pleading, see Orders XVI., XXXII., rr. 9, et seq. QUESTIONS OF LAW AM) ISSUES WITHOUT PLEADINGS. 77 H. C. Rules, Or. XXXI. r. 2. Or. XXXII. rr. 1-4. 2. The Court or Justice may, at any stage of the proceeding.s in a a'!'.'"u[,'t*^ "htn cause or matter, direct any necessary inquiries or accounts to be made (iir.Htt-«i. or taken, notwithstanding that it may apj)ear that there is some special or further relief .sought for or some special issue to be tried, as to which it may be proper that the cause or matter should proceed in the ordinary manner. The fee payable (jn drawing up and entering judgment is 10/-. ORDER XXXIl. Questions of Law and Issues without Pleadi.nos. 1. Questions of Law. 1. The i)arties to an\^ cause mav concur in stating the questions sprriai case by of !aw arising theiein in the torm oi a S])ecial ca.se tor the opinion ot the Court. Every such special case shall be divided into jtaragraphs numbered consecutively, and shall concisely state such facts and documents as may be necessary to enable the Court to decide the questions raised thereby. Upon the argument of the case the C-jurt and the parties shall be at liberty to refer to the whole contents of any documents referred to therein, and the Court shall be at liberty to draw from the facts and documents stated in the case any inference, whether of fact or law, which might have been drawn therefrom if they had been proved at a trial. Points of law may be raised by the pleadings ; see ( )nl(r X\1I., r. 26. Or on demurrer ; sec Order XXIV. 2. If in anv cause it is made to aj)])ear to the Court or a Justice Special case by that there is any question of law which it would be convenient to have ?^"'""^"^* decided before any evidence is given or any question or i.ssue of fact ^s tried, the Court or Justice may make an order accordingly and may direct the question of law to be raised for the opinion of the Court, either by special case or in such other manner as the Court or Justice deems expedient ; and all such further proceedings as the decision of the question of law renders unnecessary may thereupon be stayed. 3. Every special case shall be signed by the several parties or their p'''^,^ '"^^^ ^^^ solicitors, and shall be filed by the plaintiff. The fee payable on filing a special ease is £1. 4. A special case in any cause to which a married woman, not being J^.^U.'^,*; ,\u,rrLl*'''" a partv thereto in respect onlv of her separate propertv or in respect «oiimn. infant, or I, • • 1 , r' ,• 1 • i 1 " ■ t J. I'lTson of nnsonn.l only of any separate right of action by or, against her, or an intant, min.i i-^a i«riy or a person of unsound mind who has not been so found or declaied, or for whom a committee of the person or estate, as the ca.se may be, has not been appointed, is a i)arty, shall not be .set down for argument without leave of the Court or a Justice, the a])plication for which must be supported by sufficient evidence on oath that the statements con- tained in the special case, so far as the same affect the interest of the married woman, infant, or person of unsound tiiiiid. are true. As to entry of ease for argument, see r. 6 hifni. 78 H. C. Rules. WITHOUT PLEADINGS. Or. XXXII. rr. 5-9. Agrt'CiiKMit a liaynu'iit of moiu'v aiul ( Form of entry for argmuriit. Special case may be heard before Full Court in the first instance. Copies for Justices. Trial of question of fact agreed upon. 5. The parties to a special case may sign a memorandum to the effect that, on the judgment of the Court being given in the affirmative or negative of any question of law raised by the case, a sum of money, j&xed by the parties, or to be ascertained by the Court, or in such manner as the Court directs, shall be paid by one of the parties to the other of them, either with or without the costs of the cause ; and the judgment of the Court may be entered for the sum so agreed or ascer- tained, with or without costs, and execution may issue upon such judgment forthwith, unless otherwise agreed, or unless stayed on appeal. As to ascertainment of damages when a matter of calculation, se • Order XXXIII., rr. 27, 28. As to fee imyable on entering judgment, see Scale of Fees, sub-title, " Drawing Up and Entering Judgment." 6. Either party may enter a special case for argument by delivering to the proper officer a memorandum of entry, and, if any married woman, not being a party in respect only of such matters as in Rule 4 of this Order are specified, or if an infant, or any such person of un- sound mind as mentioned in that Rule, is a party to the cause, pro- ducing a copy of the order giving leave to enter the special case for argument. 7. When the party entering a special case for argument enters it to be heard before a single .Justice, and any other party desires it to be heard before a Full Court in the first instance, he may. within four days after receiving notice that the case has been so entered, deliver to the Registrar and to the opposite party a memorandum to that effect, and the special case shall thereupon be deemed to have been entered to be heard before a Full Court in the first instance. If the action is pending in a District Registry, the special case shall be forthwith transmitted to the Principal Registry, unless a sitting of the Full Court is appointed to be held within sixty days at the place where the District Registry is situated. After the decision of the Full Court the special case shall be returned to the District Registry with a certificate of the judgment or order of the Full Court. The fee payable on filing a special case is £1. 8. Four days at least before the day for which a special case is set down for argument the party setting it down shall leave a copy of the case at the Chambers of the Justice, or at the Chambers of each of the Justices who are to sit on the hearing of the argument. As to computation of time limited by this rule, see Order LIII. 2. Issues of Fact wilJiout Pleadings. 9. If the parties to a cause agree as to any questions of fact to be decided between them, they may, at any time before judgment, by consent and by order of the Court or a Justice, proceed to the trial of those questions of fact without formal pleadings. Such questions may be entered for trial and tried in the same manner as issues joined upon pleadings in an action, and the proceedings thereon shall be subject to the same control by the Court or a Justice as when issue is joined upon pleadings. As to trial of actions without pleadings, see Order XVI. ISSUES— TKI A L. 79 H. C. Rules. Or. XXXII. rr. 10-12. Or. XXXIII. rr. 1-2. 10. The Court or a Justice may by consent of the |)artie.s order tliat, p„^^!,'|[,.^',7of upon the findinj^ in the affirmative or nej^ative of any sucli que.stion -um of as in the la.st j)rece(lin{^ Ruh' mentioned, a sum of money, H.ved )»y tlie parties, or to be ascertained upon a question stateii for that purpose, shall be paid by one of the |)arties to the other of them, either with or without the costs of the cause. As to ascertainment of daniagcs wlun a matter "• ceding Rules mentioned, judgment may be entered for any sum so tiu' iindinii. agreed or ascertained, or for anv other relief to which the finding shows either ])arty to be entitled, with or without costs, as the case may be, and execution may issue upon the judgment forthwith, unless other- wise agreeed, or unless the Court or a Justice otherwise orders for the purpose of giving either party an opportunity of moving to set a.side the finding or for a new trial. 12. The i)roceedings upon anv such issue as aforesaid mav be re- K'"""'' pi" corded at the instance of either party, and the judgment, whether actually recorded or not, shall have the same effect as any other judg- ment in a contested action. ORDER XXXIII. Trial. 1. Place. 1. The i)laintilf mav in the indorsement on his writ or in his .state- eiacc of trial, meut of claim name the ))lace where he pur|)Oses that the action shall be tried, which place siiall be within the State in which the cause of action arose, and the action shall, unless the Court or a Justice other- wi.se orders, be tried in the place so named. When no place of trial is named, the place of trial shall, unless the Court or a Justice other- wise orders, be the place in which the Registry from which the writ was issued is situated. The provi.sions of this order, so far as the same relate to the place and mode of trial, are subject to such modifications or variations as the Court or a Judge may think tit to make on a summons for directions under ( trder W. As to change of venue, see H.C. P. Act, s. 2.j. As to appointing places of trial for different issues, see r. 4 iufrn. As to applications as to place of trial in summons for directions, see ( )nllaintifF. ^ive notice of trial, or apply to the Court or a Justice to (lisiiiiss tlic action for want of prosecution ; and on the hear- ing for such ajjplication the Court or a .Justice may order the action to be dismissed accordingly, or may make such other ord^r. arul on such terms as are just. As to dismissal of action for want of prost-cution in dcfauli di |pi. ii-lmi;, >• .1 Order XXVI., r. 1. As to computation of tinu- liniitt-d by this ruk', see OriK-r Llll. 8. The notice of trial shall state whether it is for the trial of the Fonn ot notice 01 ■cause or of questions or issues therein, and shall name the place where, tf"'- iind the day on which, the trial is to be had. See r. 12 infni. 9. Sixteen days" notice of trial shall lie given, unless the party to unKth of notice, whom it is given has consented, or is under terms, to take shorter notice of trial ; and such notice shall be sufficient in all cases, unless otherwise ordered l)y tlie Court or a Justice. This rule applies to an inquiry pursuant to a writ of inquiry ; see r. 26 infra. As to early trial, see Order XLIII., r. 8 ; as to Computation of time limited by this rale, see Order LI 1 1. 10. Notice of trial shall be given before entering the cause or ques- Entr>|^of cause tions or issues for trial ; and a cause may be entered for trial, not- withstanding that the pleadings are not closed, provided that notice of trial has been given. This rule ap])lies to an inquiry pursuant to a writ of inquiry ; see r. 2G infm. As to time for entry for trial, see r. 11. As to entry of trial by party served with notice of trial, see r. 14 infra. As to copy of pleadings, etc., to be delivered for use of Justice at trial when entering cause for trial, see r. lo infra. As to when pleadings are closed, see Orders XXII., r. 4 ; XXVI., r. 9. The fee payable on entering an action for trial before a .Justice with or without a jury, in addition to the fees if any, payable in respect of a jury, is £1. 11. The entrv must be made within six davs after notice of trial is Avoi.ii.nce of .,,, •, a i. notice 01 trial. given ; otherwise the notice of trial shall cease to have ettect. As to entry of cause for trial, see r. 10. As to computation of time limited by this rule, see Order l.Ill. 12. Notice of trial of a cause or questions or issues before a Justice .v„tice of trial, with a jurv shall be for the first day of the Sittings, unless the Court or a Justice allows it to l>e given for a later day. As to trial by jury, see r. 2 supra. 13. A notice of trial shall not be countermanded except by con- countcrmamiing sent, or by leave of the Court or a Justice, which leave may be given """'''• subject to such terms as to costs, or otherwise, as are just. This rule applies to an inquiry pursuant to a writ of inquiry : ."ce r. 2(5 infra. 82 H. C. Rules. TRIAL. Or. XXXIII. rr. 14-21. Entry for trial by l)arty served with iiotic<'. 14. If the party giving notice of trial omits to enter the cause or issues for trial on the day of or the day after giving notice of ti'ial, the party to whom notice has been given may, within four days thereafter, enter the same for trial, unless in the meantime the notice has been, countermanded under the last preceding Rule. As to entry of action for trial, see r. 10 sujira. As to computation of time limited by this rule, see Order LIII. Copies of pleadings, &c., to be delivered. 4. Papers for Justice. 15. The party entering the cause or questions or issues for trial shall deliver to the proper officer two copies of the whole of the plead- ings, if any, and of the issues, or of such other proceedings as show the questions for trial, one of which shall be for the use of the Justice at the trial. As to entry of cause for trial, see r. 10 supra. Default of appearance by defendant at trial. Default of appearance by plaintilf. Judgment by default may be set aside on terras. Adjournment of trial. Nonsuit. Effect of judgment of nonsuit. 5. Proceedings at Trial. 16. If, when a cause is called on for trial, the plaintifi appears, and the defendant does not appear, then the plaintiff may prove his claim, so far as the burden of proof lies upon him. As to motion for judgment, see Order XXXVI. 17. If, when a cause is called on for trial, the defendant appears, and the plaintiff does not appear, the defendant shall be entitled to judgment dismissing the action. As to motion for judgment, see Order XXXVI. 18. A verdict or judgment obtained where one party does not appear at the trial may be set aside by the Court or a Justice upon such terms as are just. If the cause was set down for trial in a place where there is no District Registry, the application may be made either at the place appointed for the trial before the close of the Sit- tings, or afterwards at the place where the District Registry is situated. As to setting aside judgment obtained by default, see Orders XL, r. 8 ; XXVI.^ r. 11. 19. A Justice may, at or before the trial, if he thinks it expedient,, for the interests of justice, postpone or adjourn a trial for such time, and to such place, and upon such terms, if any, as he thinks fit. This rule applies to an inquiry pursuant to a writ of inquiry ; see r. 26 itifra. As to change of venue, see H.C.P. Act, s. 25. 20. When the plaintiff at the trial fails to establish by his evidence such a case as to call for an answer from the defendant, the Court may direct judgment of nonsuit to be entered. As to effect of judgment of nonsuit, see r. 21 infra. As to withdrawing juror, see Order XLIV., r. 4. 21. A judgment of nonsuit shall not have the effect of a judgment on the merits for the defendants. TlUAl.. 83 H. C. Rules. Or. XXXIII. rr. 22-28. 22. The justice may, at or after a trial, direct that judpment be t."nTr"' entered for anv or either party, or may adjourn the ca.se for further «,iNiizcs, enter allsuch findings of fact as the Ju.stice directs to be entered, and *'• the directions, if any, of the Ju.stice as to judgment, and the certifi- cates, if any. granted by the Justice, in a book to be kept for the ])uri)ose. 24. If the Justice directs that anv judgment be entered for any ortifl'-atc (or ' ■«*' <*ntr\' of partv absolutely, the certificate of the associate to that effect shall be jiKiKinent. a sufficient authority to the proper officer to enter judgment accor- dingly. 6. Wrils of Inquinj and References as to Damages. 25. Writs of inquiry shall be directed to such persons as the Court Writ-iof _ . ,. ^ • inquiry-. or a Justice directs. As to what rules are ap])li(able in case of an inquiry, see r. 20 hifra. As to issue of writs to assess damages, see Orders XL, rr. 5, (5, 7 ; and X X\ I., rr. .3, 4, 5. 26. The provisions of Rules 9, 10, 13 and 19 of this Order shall, f,;;','!*""*^" "^ with the necessary modifications, apply to an inquiry pursuant to a writ of inquiry. Rules 9, 10, i;} and 19 deal with notice of, entry for, countermanding notice of, and adjournment of trial, respectively. 27. In anv cause in which it appears to the Court or a Ju.stice that Ascertainment of • , - ... 1 1 • u J. i- II daniaKe^ when a the amount of damages sought to be recovered is substantially a matter of matter of calculation, it shall not be necessary to issue a writ of in- calculation, quirv. but the Court or a Justi e may direct that the amount for which final judgment is to be entered shall be ascertained by an officer of the Court. In any such case the attendance of witne.sses and the i)ro- duction of documents before the officer may be compelled by subpoena, and the officer may adjourn the iiupiiry from time to time. The officer shall certify by indorseinent upon the order by which the question is referred to him the amount of damages found l)y him, and shall deliver the order with the indorsement to the ])erson entitled to the damages ; and the like proceedings may thereui»on t)e had as to entering judgment, taxation of costs, and otherwise, as upon the return to a writ of inquiry. 28. When danuiges are to be assessed in respect of a continuing ^,^"1);'.'^';;/" cause of action thev shall be assessed down to the time of the assess- continuing cause of action. ment. 84 H. C. Rules. EVIDENCE. Or. XXXIV. rr. 1-5. ORDER XXXIV. Evidence. R(>qu<>st to examine witnesses. 1. Examination of Witnesses. 1. The Court or a Justice may, in any case in which a request to examine witnesses may by law be issued, order that a request to examine witnesses be issued in lieu of a commission. Order for attendance of person to produce documents. Disobedience to order for attendance. Expenses of person ordered to attend. 2. The Court or a Justice may, in any cause or matter, at any stage of the proceedings order the attendance of any person before the Court or a Justice for the purpose of producing any writing or other docu- ment named in the order which the Court or Justice thinks fit to be produced ; Provided that no person shall be compelled to produce under any such order any. writing or other document which he could not be compelled to produce at the hearing or trial, {a) As to order by the High Court for production by parties of any books or writ- ings in their possession containing evidence pertinent to issue, see H.C.P. Act, s. 17. As to application for discovery of documents, see Order XXIX., rr. 8, 10. As to production of documents for inspection, see Order XXIX., r. 11. As to notice to admit documents, see Order XXX., r. 2. {(i) Held by the High Court that this rule does not apply to a case where dis- covery (or any act or act*, the performance of which amount to discovery) is sought against a person not a party to the suit, and therefore does not apply to proceedings (under the Commonwealth Electorial Act, 1902-1911 and the Election Rules of 1904) in the High Court in the exercise of its jurisdiction as the Court of Disputed Returns : Hedges v. Burchell, (17 C.L.R., 327 [1913]). 3. Anv person who wilfully disobeys an order requiring his atten- dance for the purpose of being examined or producing any document shall be deemed guilty of contempt of court, and may be dealt with accordingly. As to examination of witnesses, see H.C.P. Act, s. 19. As to attendance of witnesses under subpoena for examination, see r. 12 htfra. As to application for order directing attendance of witness duly summoned who refuses to attend, see r. 5 infra. As to committal for contemiJt, see Order XLIX. 4. Any person required to attend for the purpose of being examined or of producing any document shall be entitled to the like conduct money and payment for expenses and loss of time as upon attendance at a trial in Court. Refusal of witness to attend or to be sworn. 5. If any person duly summoned by subpoena to attend for exami- nation refuses to attend, or if, having attended, he refuses to be sworn or to answer any lawful question, a certificate of the refusal, .signed by the examiner, shall be filed in the Registry, and thereupon the party requiring the attendance of the witness may apply to the Court or a Justice, ex parte or on notice, for an order directing the witness to attend, or to be sworn, or to answer any question, as the case may be. As to disobedience to order for attendance, see r. 3 supra. The fee on filing a certificate of refusal of a witness to attend is 2 6. KMDKXCK. 85 H. C. Rules. Or. XXXIV. rr. 6-12. 6. If any witnes.s objects to any question whicli is put to him be- "[li',','^]";'^ ''*' fore an examiner, the question, and the objection of the witness there- .|ii.-.tion.. to, shall be taken down by the examiner and transmitted by him to the Refjistry, to be there filrd, and tlie validity of the objection shall be decided by the Court or a Justice. As to costs occasioned by sucli objection, see r. 7 iiifiu. The fee on filing a question to which a witness objects, together with the ob- jection is 2/6 7. In any case under the two last preceding Rules, the Court or a j;;!'-;.:,!;';;"?',!?""* Justice niav order the witness to pay any costs occasioned by his oi.j.-ction. refusal or objection. 8. When the examination of any witness before an examiner 'las d^i-^' |',|«f^ {« ** been concluded, the original depositions, authenticated by the .signa- <...tr.iinm(.-. ture of the examiner, shall be transmitted by him to the Registry. and there filed. Any party may have a copy of the depositions, of or anv part thereof, on payment of the pre.scribed fee. The fee prescribed for a c()])y of tlie dej)ositions is 8d. for every folio. 9. The person taking the examination of a witness mav. and if need ^I'-'iai roj^.n by be shall, make a special report to the Court touching the examination and the conduct or absence of any witness or other person thereon, and the Court or a Justice may thereupon direct such proceedings to be taken and may make such order, as ujjon the report is just. 10. E.xcept as bv this Act otherwise provided, no de])ositi()n shall i)r|K»itioi.- not be civen in evidence at the hearing or trial ot a cause or matter without ..vid.iue «itiumt the'^consent of the party against whom it is offered, unless the Court [.",;!;;:'^VjM'?i«-. or Justice is satisfied that the deponent is dead or beyorid the juris- diction of the Coui;t, or unable from sickne.ss or other infirmity to attend the hearing or trial, in any of which cases the depositions certi- fied under the hand of the jjerson taking the examination shall be admissible in evidence, saving all just exceptions, without proof of the signature to the certificate. 11. Anv officer of the Court or other person directed to take the <•»»<'- examination of anv person may administer the necessary oaths to him. As to form of oath, see H.C.P. Act. s. 18. 2. SxhpoeiKtti. 12. Any party to a cause or matter may. subject to these Rules. V';;';;';';;;;^,;.'/ a writ of subi)oena ad testificandum or sul»|)oena duces tecum ,ui.i.hii.i for require the attendance of any person, or the production of any docu- l™',;",'.';.'" "'' ment, before the Court or Justice at the hearing or trial, or on the «i«««'">'"«-- hearing of any motion or ai)plication in the cau.se or matter, or before the Registrar or other officer of the Court or other person appointed to make any inquiry in the cau.se or matter, or before any person ap- pointed to take any examination of witncs.ses. As to di.sobedienco to order for attendance, see r. .3 .supni. bv 5/ The fco payable on sealing a writ of sulipoena for not nioix- than three jHTsons is - ; for every additional jx'rson named in the subpoena, 1 /-. 86 H. C. Rules. EVIDENCE AFFIDAVITS. Or. XXXIV. rr. 13-17. Or. XXXV. rr. 1-2. Subpoena for attendance of witness in Clianibcrs. 13. When a subpoena is required for the attendance of a witness for the purpose of proceedings in Chambers, the subpa'na shall issue from the Registry upon a fiat of the Justice. Subpoena for \^ When a subpoena is required for the attendance of a vitness for Registrar.' " ° '' the purpose of proceedings before the Registrar or other officer of the Court, the subpoena shall be issued upon the direction of the Registrar or officer. Service of subpoena. Affidavit to service of subpoena. 15. The service of a subpoena shall be effected in the same manner as the service of a writ of summons in an action. The copy of a sub- poena for a witness served upon him need not contain the name of any witness other than the person served. As to time within which subpoena to be served, see r. 17 infra. As to mode of service of writ of summons, see Order VIII., rr. 1,2. 16. Affidavits filed for the purpose of proving the service of a sub- poena upon any person must state when, where, how, and by whom, the service was effected. Within wliat time subpoena to be served. 17. The service of a subpoena shall be of no validity unless it is made within twelve weeks after the date of issue. As to computation of time limited by this rule, see Order LIII. ORDER XXXV. Cross examination of deponents. Title of affidavits. Affid.wits. 1. The Court or a Justice may, on the application of any party, order that any person whose affidavit is projiosed to be read in any proceeding shall attend before the Court or Justice, or an officer of the Court, or commissioner of affidavits, for cross-examination upon the affidavit. As to evidence by affidavit on hearing of a matter, see H.C.P. Act, s. 20 (1). As to proof on trial of a cause of service of a document or signature thereto, see H.C.P. Act, s. 20 (2). As to order of proof of particular facts by affidavit or that affidavit of a jjerson be read, see H.C.P. Act, s. 20 (3). As to appointment of Commissioner, see H.C.P. Act, s. 22. As to subpoena, see Order XXXIV., r. 12. 2. Every affidavit shall be entitled in the cause or matter in which it is sworn, if any is then pending ; but in any case in which there are more plaintiffs or defendants than one, it shall be sufficient to give the fidl name of the first plaintiff or defendant, respectively, adding the words " and another," or " and others," as the case may be and the costs occasioned by any unnecessary prolixity in the title shall be disallowed by the taxing officer. If no cause or matter is pending, it shall not be necessary to entitle the affidavit otherwise than as provided by Order 1, Rule 2. As to title of affidavits in application for writs of certiorari mandamus or pro- hibition, or for leave to exhibit informations of quo warranto, see Order XLVII., r. 3. AFFIDAVITS. ft7 H. C. Rules. Or. XXXV. rr. 3-9. 3. Affidavits shall be confined to facts to which the deponent is able .^'^"^^^,';*** to depose of his own knowiedjie. e.xceptin the cases specially provided for by these Rules. ai\d exce[)t in the case of affidavits used on inter- locutory motions or ai)plications, in which statements as to the belief of the de|)onent, giving the sources of his information and tli** grounds •of his belief, may be admitted. 4. Every affidavit shall be drawn uj) in the Hrst person, and shall l^""^^",!^ be divided into paragraphs, and every paragraph shall be numbered consecutively, and shall, as nearly as may be, be confined to a flistinct portion of the subject. No costs shall be alloved for any affidavit or part of an affidavit which substantially violates this Rule. As to indorsement of affidavit, see r. 1 1 infru. 5. Every affidavit shall state the description and true i)lace of ^,;;;',ription and abode of the deijonent. dciwncut t<. i.c ' -tatwl. As to power of Court to allow use of a defective affidavit, see r. 13 infra. 6. The jurat of an affidavit must state that it was signed ('0 and J,';™^-^ Several sworn by the deponent on the day and at the place where it was sworn. Each sej)arate sheet must be signed by the deponent and by the person before whom the affidavit is taken, with the date and ].hice of swearing added. («) On objection being taken that a jurat of an affidavit did not state that it was signed by the deponent on the day and at the i)hice where it was sworn, such -objection was overruled : Prentice v. Amalyauiatid Mining Eniplo;/ee^' .-l.s'.swm- Jioi of Virtoria and Tasmanin, (15 C.L.R. 235 [1912J ; 18 A.L.R. 343 [1912]). 7. In an affidavit made by two or more (le])onents the names of the AffldavUs nmd^ several i)ersons making the affidavit must be inserted at length in the di-|Knienu*. jurat, except that if the affidavit is sworn by all the deponents at the ■same time by the same officer it shall be sufficient to state that it was sworn by " both " or " all '" the •" above-mentioned " deponents, -using those words. 8. An affidavit which has either in the body thereof or in the jurat ;f^;;«!.';:"'* "' any interlineation, alteration, or erasure shall not, without leave of the Court or a Justice, be read or made use of in any cause or matter imless the interlineation or alteration, not being by erasure, is authen- ticated bv the initials of the officer taking the affidavit, or. if the affidavit is taken in a Registry, either by his initials or by the office stamp ; nor, in the case of an erasure, unless the words or figures appearing at the time of taking the affidavit to be written on the ■erasure are re-written and signed or initialled in the margin of the affidavit by the officer taking it. As to use of defective affidavits, see r. 13 infra. 9. When an affidavit is sworn by anv person who appears to the [^,l[';^;j;,;';,r'- •officer before whom it is taken to be illiterate or blind, theofficershall blind i«^ence to the deuonent. that the dejionent seemed perfectly to understand it. and that the deponent made his signature or mark in the presence of tlie 88 AFFIDAVITS. H. C. Rules. Or. XXXV. rr. 10-15. Affiriu:ition. officer. No such affidavit shall be used in evidence in the absence of this certificate, unless the Court or a Justice is otherwise satisfied that the affidavit was read over to and appeared to be perfectly understood by the deponent. 10. When a deponent does not take an oath, the form of jurat shall be varied, and the necessary alterations made so as to conform with, the solemn affirmation or other declaration of the deponent. As to form of affirmation, see H.C.P. Act, s. 18. Affidavits to be ^^ Everv affidavit shall be filed in the Registry. A note shall be indorsed on every affidavit stating the name of the deponent and on whose behalf it is filed, and no affidavit shall, without the leave of the Court or a Justice, be filed or used without this note indorsed thereon. As to stamping of affidavits, see r. 15 infra. The fee for filing an affidavit unless otherwise provided is 2 /6. mat'tri-''''*^* 12. The Court or a Justice may order any matter which is scanda- lous to be struck out from any affidavit, and may order the costs of any application to strike out such matter to be paid as between solicitor and client. ^^%°^'^'^'^'^*'^'® 13. Notwithstanding anything in the preceding Rules of this Order, the Court or a Justice may receive any affidavit sworn for the purpose of being used in any cause or matter, notwithstanding any defect, by misdescription of parties or otherwise, in the title or jurat, or any other irregularity, and may direct a memorandum to be made on the affi- davit that it has been so received. As to non-compliance with rules not rendering proceedings void, see Order LVII., r. 6. Exiiii)its. 14^ Every sheet of an annexure or exhibit to an affidavit shall be certified by the officer before whom the affidavit is taken, and signed by the deponent. Every such certificate shall be marked with the short title of the cause or matter. The fee on filing exhibits referred to in an affidavit and not annexed thereto- and required to be filed, is for each exhibit 1 /-. stamiiing of 15, Before an original affidavit is allowed to be used, it shall be ainaavits and use t • i /^i- i i r i i ■ c of office roi)ies. stamped With a nluig stamp to be kept tor tliat purpose, and. it not already filed, shall at the time when it is used be delivered to and left with the proper officer in Court or in Chambers, who shall send it to be filed. An office copy of an affidavit may be used instead of the original, the original affidavit having been previously filed, and the copy being duly authenticated with the seal of the office. As to filing affidavits, sec r. 1 1 supra. As to use of defective affidavits, see r. 13 supra. As to office copies, see Order LVII., r. 4. AFKUJAMT-S— MOTION FOR .ILlXJ.MKNT. 89 H. C. Rules. Or. XXXV. rr. 16-18. Or. XXXVI. rr. 1-3. woni itor 16. An affidavit .sworn before the solieitor acting for the j.arty on f^.!J|;^.';i',;;, who.se behalf the affidavit is to be u.sed, or before any agent, clerk. ..r his ajj.-nt partner, or core.s|)ondent of such solicitor, or before the party himself, shall not be received. « 17. When a special time is limited for filing atii.lavits. an affidavit ,^|;;,'^'"„'j;||;;n/:'' filed after that time shall not be used without leave of the Court or a Justice. 18. Except by leave of the Court or a .Justice an order made ex ■':^^^^;^^l^^'l^ parte in Court founded on any affidavit shall not be drawn uj) unless partf the affidavit on which the application was founded was actually made "I'l'""^"^"'- before the order was a])pliod for. and was |)roduced or filed at the time of making the motion. ORDER XXXVI. Motion for Judgment. 1. Except when by these Rules it is jjrovided that judgment may J,\'^'^>;;j;.^^' be obtained in any other manner, the judgment of the Court shall be obtained upon motion for judgment. As to entering final judgment in default of appearance, see Order XI. In default of pleadings, see Order XXVI. As to judgment or order upon admissions of fact, see Order XXX., r. ."?. The fee on hearing an action on motion for judgment is 10/-. 2. When at the tiral of a cause the Justice does not direct any j;^/;^;;^,^° ^j^.^^ judgment to be entered, the plaintiff may set dow n the cause on mo- „t tri.ii. motion for judgment. If he does not set down the cause and give notice of the setting down to the other parties within ten days after the trial, any defendant may set down the cause on motion for judg- ment and give notice of the .setting dow n to the other parties. As to computation of time limited by this rule, .see Order LIII. 3. When i.ssues liave been ordered to be tried, or questions or i.ssues s.-ttinc T10XS IN CKNKJIAL. 1)1 H. C. Rules. Or. XXXVII. rr. 4-10. 4. On davs on which the Tourt .sits to hear motions, thev shall, Tobi-moywi 1 1 /t" I • 1 1 1 1 1 /• bv rouii-t'l ill unless the lourt otherwi.se orders, be heard before the matters .set oniir oj down in the |)a))er are called on for liearin. 7. Unless tbe Court or a Justice gives sjjccial leave to the contrary ''"utii of notice which leave may be obtained ex parte, there must he at least two clear days between the service of a notice of motion and the dav named in the notice for making the motion. As to time, see Order LIU. As to service, see Order LV. 8. If, on the hearing of a motion, the Court is of opinion that any Miition^ nmy he person to whom notice has not been giveu ought to have notice, the u.Vjo'mu-ij"'^ Court mav either dismiss the motion, or mav adiourn the hearing "'".'■■'' '"■'■''•■^'>' ,,.--, . , . • - f notiic not thereof, in order that such notice may be giv»Mi. upon such ttMins, Kiv.n. if any. as the Court may think fit. As to power of Court on motion for judgment, see Oidii X \ \\ 1., r. (i. 9. 'I'lic Court may order that any (jucstioii of fact arising upon a''";iiii motion shall be tried in any manner in which any (picstictii or issue of tal't^ "'"'" fact in an action may be tried. 10. A plaintiff nuiy, without anv .special leave, serve anv notice of s«<«'«''"k^- time, if any, limited for the apjiearance of such dcfeiidanl. As tt) service of oripiniiting proceedings, sec Order \11I. As to appearance, see Order X. 92 H. C. Rules. MOTIONS IN GENERAI ENTRY OF JUDGMENTS. Or. XXXVII. rr. 11-13. Or. XXXVIII. rr. 1-4. Service of notice. Defendant sorveil but not aiii)caring. Xotice of atflilavits. Collie- of affidavits on originating motions to be served. 11. A plaintiff may, without any special leave, serve any notice of motion, or any other notice, or any petition or summons, upon any defendant, who, having been duly served with the originating pro- ceeding and required to appear, has not appeared within the time limited for that purpose. 12. A list of all affidavits intended to be used in support of a motion shall be served with the notice of motion, and no other affidavits shall be used, or other evidence given, by the party moving on the hearing without the leave of the Court. When the party moving intends to adduce oral evidence on the hearing of a motion, notice of such intention shall be served with the notice of motion. 13. Copies of all affidavits intended to be used in support of a mo- tion by which a cause or matter is originated shall be served with the notice of motion. As to service generally, see Order LV. •As to copies of affidavits, see Order XXXV., r. 15. ORDER XXXVIII. Mode of eiitrv. Date of judgnunt prononnced in court. Date of entry of other jud'^ments. Entry of Judgments. 1. Every judgment shall be entered by the proper officer in a book kept for that purpose. The party entering the judgment shall deliver to the officer a copv of the whole of the pleadings, if any, not already filed. 2. When a judgment is pronounced by the Court, the entry of the judgment shall be dated as of the day on which such judgment is pronounced, unless the Court otherwise orders, and the judgment shall take effect from that date ; Provided that by special leave of the Court a judgment may be ante-dated or pcst-dated. As to pronouncement of judgments, see Order of the Court, No. 162, page 155. 3. In any other case the entry of judgment shall be dated as of the day on which the requisite documents are left with the proper officer for the purpose of such entry, and the judgment shall take effect from that date. Time to be stated for doing any act ordered to be done. Memoraundum to be indorsed. 4. Every judgment or order made in any cause or matter requiring any person to do any act thereby ordered to be done, shall state the time, or the time after service of the judgment or order, within which the act is to be done, and there shall be indorsed upon the copy of the judgment or order served upon the person required to obey the same a memorandum in the words or to the effect following, viz. : — " If you, the within-named A.B., neglect to obey this judg- ment (or order) by the time therein limited, you will be liable to process of execution for the. purpose of compelling you to obey the judgment {or order)." As to time, see Order LIII. As to service, see Order LV. jrr)r;MF.XTs dkawinc ii' .il'dc.mkxts axd ordeijs. 93 H. C. Rules. Or. XXXVIII. rr. 5-10. Or. XXXIX. rr. 1-2. 5. When })y any Statute or these Rules or otherwise, it is provided ;',^','j/".lJ,\\"", that any judjiiiient may l)e entered upon tfie filini the defendant has not tonsont of party appeared, or has ai)i)eared in person, a consent order for entering judgment against such ])arty shall not be made unless the party attends before a Justice and gives his consent in person, or unless his written consent is attested by a solicitor acting on his behalf, unless the party is himself a barrister or solicitor. As to appearance, see Order X. 10. A memorandum of satisfaction of a judgment nuiy be entered Kntr>- of upon a con.sent to the entry, signed by the party entitled to the benefit •^""'"*^ '""• of the judgment, and attested and verified by the affidavit of tl. at- testing witness, being filed in the Registry. If the attesting witness is not a barri-ster or .solicitor, the approval of a Justice must be obtained, which may be indorsed on the affidavit. ORDER XXXIX. 1)k.\win(; Vv .Udcmk.n" rs .\.\i> Okdkks. 1. Judgments and orders, wli<'ther given or made in Court or in ^^^^^l^";'!'^!^ ^^^^^ Chambers, or by default, shall be drawn up by the Registrar or under ..Virrs't.. !,.■ his direction, unless otherwise directed by the Court or a Justice. ''f^'"" ""'• As to prononncpmcnt of jvidpments, see Order of tlie Court, No. \&2. \o\iiv 15."). 2. Xo judgment or order founded, in whole or in j.art. on a petition. I^^Xa'mok or on affidavits, written admis.sions, or other written documents, shall j.i.Ui.i. m ..r be signed until .such ])etition. admissions, affidavits, or other docu- "" "" -"'"' ments, have been filed in the Registry. 94 H. C. Rules. DRAWING UP JUDGMENTS AND ORDERS. Or. XXXIX. rr. 3-11. Documents to be left with Registrar on bespeaking judgment or order. Registrar may require party to submit draft. Time for bespealving judgment or order. Where judgment or order not bespoken. Appointment for settling judgment or order. Notice of appointment to be served on opposite party. Service of notice of appointment. Proof of service. 3. At the time of be.speaking a judgment or order, the party be- speaking the same shall leave with the Registrar his counsel's brief, if any, and such other documents as may be required by the Registrar for the purpose of enabling him to draw up the same. 4. The Registrar may require the party bespeaking a judgment or order to prepare a draft of the same and leave the same in the Registry for his use or assistance, and may accept the draft so prepared and left as his own draft of the judgment or order, with such alterations, if any, as he may think fit. 5. Every judgment or order shall be bespoken, and the requisite documents mentioned in the last preceding Rule but one shall be left with the Registrar, within seven days after the judgment or order is finally given or made by the Court or Justice. As to judgments, see Order of the Court, No. 162, page 155. 6. If any judgment or order is not bespoken, and the requisite documents are not left with the Registrar within the time prescribed by the last preceding Rule, the Registrar may decline to draw up the judgment or order without the direction of the Court or a Justice. 7. At the time of delivering out the draft of a judgment or order which, in the opinion of the Registrar, ought to be settled in the presence of the parties, he shall deliver out to the party on whose application the draft has been prepared an appointment in writing of a time for settling the same. 8. A notice of the appointment shall be served on the opposite party one clear day at least before the time thereby appointed for settling the draft, and the i)arty serving the notice and the party so served shall attend the appointment, and shall produce to the Regis- trar counsel's briefs, if any, and such other documents as may be necessary to enable him to settle the draft. 9. Service of the notice of appointment shall be effected by leaving it at the place of service of the party to be served, or by transmitting it by post to such party at such place for service. 10. At the time appointed for settling the draft the Registrar shall satisfy himself, in such manner as he may think fit, that service of the notice of appointment has been duly effected, and for that purpose may require evidence on oath. As to service; see Order LV. As to evidence; see Order XXXIV, Appointment for passing judgment or order. 11. When the draft has been settled by the Registrar, he shall name a time in the presence of the several pa-^ties, or else deliver out an appoin*-ment in writing of a time for passing the judgment or order ; and in the latter case notice of the appointment shall be served by the party to whom the appointment is delivered on the opposite party, and the service shall be proved in the manner prescribed by the last two preceding Rules with reference to an appointment to settle the draft of a judgment or order. l)\i.\ W IXG Li' J L'JJ(iMENT.s A.\J) OJiDKKS. 95 H. C. Rules. ' Or. XXXIX. rr. 12-17. 12. If any jjarty fails to uitcinl the Registrar'.s appointment for f,^',^"*)',,'" settling the draft of a judgment or order, or fails to produce liis coun- ai-|K.iiitiii.iit sel's briefs and such other documents as the Registrar may require to "'""*"<""»'■"•-■ enable him to .settle such draft, or to pa.ss such judgment or order. the Uegi-itrar may proceed to settle tlie draft, or to pass the judgment or order, in his absence, and the Registrar shall be at liberty V) dis- pense witli the production of counsel's briefs, or with the production of such documents or papers as aforesaid, and to act upon such evi- dence as he may think fit of the actual appearance by counsel of the party failing to attend, or may require the matter to be mentioned to the Court or a Justice. Ai to default of appearance generally; see Order XI. 13. The Registrar may adjourn any apj)ointment for settling the Adjournmrnt of draft of a judgment or order, or for |)assing a judgment or order, ^q "I'l"""*"""'-- such time as he may think fit, and the parties who attended the ap- pointment shall be bound to attend such appointment without further notice. 14. Notwithstanding the preceding Rules of this Order, the Regis- s«tHing and trar may, in any case in which he may think it expedient so to do, judgment or settle and pass any judgment or order, without making any appoint- ant'apiloii?"* ment for either purpose and without notice to any ])artv. ' ><'it. 15. Every judgment or order wlien .settled and pa.ssed shall be en- Judsm.-nt^ and grossed by the |)arty having the carriage of the judgment or order. nllii'^*" '" 16. (1) Every judgment and order shall be kept in the Registrv as a record. (2) A du})licate of every judgment or order shall, one clear dav Diii>iuatos. after the same has been entered, and in urgent cases sooner if so directed by the Registrar, be signed and sealed by the Registrar, without fee, and delivered to the party having the carriage of the judg- ment or order ; and whenever any rule or order or the practice of the Court requires the production of a judgment or order, it shall be suffi- cient to produce the du])licate. (3) A further du])licate may at any time, with the sanction of the Registrar and on j)ayment of the prescribed fee, be issued on pro- duction of the duplicate first issued, or on the Registrar being satisfied of the loss of that dupliiate, and that the person applying is properly entitled to it. (4) A judgment or order shall not be aiiu'iided except on jirodurtion of the duplicate or du])licates. or the fluplicate last i.ssued, as the case may be, which shall, after the original order has been amended, be also amended in accordance therewith, under the direction of the Registrar, and the amendment in the duplicate shall be sealed under the like direction, 17. The Registrar shall, if requested to do so l)y anv i)arty at the ortiflcato for time of any attendance before him for the purpose of settling the draft ,ni'iowaiiply to ' a Justice for an order directing that 4 si.atcment ofthe names and addresses of the persons who were at the time of t!ie acc/uing of the cause of action, partnei"s in the firm, shall be furnished i:i a'H h'lnanner, and verified on oath or .otherwise, as the Justice directs. 5. When persons. are sued as parti-.ers iij ^Je name vf their firm s.rviie. under Rule 1 of this Orde*r. the oWginating proi-eeding shall be served either u})on some one or more ot the partners, or at the princijjal place, within the Commonwealth, of the business of the partnership upon some person having at the time of service the control or management of the partnership business there ; and, subject to these Rules, such service shall be deemed good .service upon the firm whether any of the members thereof are beyond the Commonwealth or not. Provided that in the case of a partnership which has been dissolved to the know- ledge of the plaintiff before the commencement of the action, the originating proceeding shall be served u[)on every person within the Commonwealth sought to be made liable. As to delivery to person served of notice of the character in whieh he is served; see r. 5 infra. As to appearance; sec rr. 8, 9. As to service of originating proceedings generally; see Order \"III. 6. When persons are sued as ])artners, and the originating jtro- Nntice in wiiat ceeding is served as directed by the last preceding Rule, there shall '■'''■*" -^ ^er\^■< . be delivered with it to every person upon whom it is served a notice in writing stating whether he is served as a partner or as a person having the control or management of the partnership business, or in both characters. In the absence of such notice, the person served shall be deemed to be served as a ])artner. >earan(0 oi ners. 7. When i)ersons are sued as partners in the name of their firm, •^''l' ... . . hurt they shall a])])ear individually in their own names ; but all subse- quent proceedings shall, nevertheless, continue in the name of the firm. As to no appearance except by partners; see r. 8 iujni. As to conditional appearance; see r. 9 infra. As to appearance generally ; see Order X. 8. When a writ is served under Rule 5 of this Order upon a person No ap|)earance having the control or management of the partnershi|) business, an i^rtners.^ ap])earance by him shall not be necessary unless he is a member of the firm sued. 9. Any person served as a partner under Rule 5 of this Order mav Appearance enter a conditional a])pearance. denying that he is a partner, but ""'p'orsjn'served such a])pearance shall not preclu- or other i)roceeding instituted in the Court in the exerci.se of the " jurisdiction conferred on it by the Colonial Courts of Ai Act 1890 and the Judiciarii Act 19U. 3. Admiralty actions shall be commenced by writ of summons. ;r;;,[;;;.^^^, ,,^. Every such action shall be entitled •■ In the High Court of Australia writ of^^^^ in Admiralty."' The title '" Emperor of India " shall be added to the j^tu-'o/artion. titles of the Sovereign. 4. In Admiralty actions for seamen's or master's wages, two or ^^^j^JJI";; /,J^ more persons claiming relief against the same person or property « a..-.-, may be joined as plaintiffs. 5. \ctions for condemnation of anv ship, boat, cargo. j)roceeds. '^d^%v slaves, or effects, or for recovery of any pecuniary forfeiture or action*, penalty, shall be instituted in the name of the King. 6. In an Admiralty action in personam the defendants may be 1^';;^l^^^ described as the owners of the ship instead of by their personal names. 7. In Admiralty actions in rem the description of the res shalU'^'^^^ °/^„, „, be in such one of the forms following, as may be apjdicable. with such rfs. variations as circumstances may require, that is to say : (a) The Ship or (6) The Ship and freight ; or (c) The Shii) lier cargo and freight ; or {if the action is against cargo onhj), {(l) The cargo ex the Ship {state the name of ship on hoard of irhich the cargo now is or lately ivas laden) : or {if the action is against the proceeds realized hg the sale of the ship or cargo), (e) The proceeds of the ship ; or (/) The ])roceeds of the cargo ex the Shii> {or as the case mag he). 8. The indorsement of claim on the writ shall be in such one of _';'d^'^;;;»'-"t the forms in the Schedule to this Order as may be applicable. 102 H. C. Rules. Account in certain Admiralty actions. ADMIRALTY. Or. XLIIa. rr. 9-11. 9. In Admiralty actions for seamen's or master's wages, or for master's wages and disbursements or for necessaries, or for bottomry, or any other Admiralty action in which the ])laintiff desires an ac- count, the indorsement on the writ may include a claim to have an account taken. Seamen not to give security in action for wages, &c. 10. A seaman suing in an Admiralty action for his wages or for the loss of his goods or clothes in a collision shall not be required to give security for costs. Arrest in Admiralty actions by warrant after atfidavit. 2. Arrest of Proj)erly. 11. In Admiralty actions m rem a warrant for the arrest of pro- perty, which shall be in the form in the Schedule, with such variations as circumstances may require, may be issued by the Registrar at the instance either of the plaintiff or the defendant, at any time after the writ of summons has been issued. But. except by leave of the Court or a Justice, a warrant of arrest shall not be issued until an affidavit by the party or his agent setting forth the particulars hereby pre- scribed, has been filed, and the following provisions have been com- plied wdth, that is to say : — (rt) The affidavit shall state the name and, description of the party at whose instance the warrant is to be issued, and the nature of the property to be arrested, and that the claim or counter claim has not been satisfied, and that the aid of the Court is required to enforce it ; {})) In an action for wages or of possession the affidavit shall state the national character of the ship, and, if the ship is foreign, that notice of the action has been served upon a consular officer of the State to which the ship belongs, if there is one resident in the place of the Registry in which the writ of summons is issued. (c) In an action for necessaries the affidavit shall state the national character of the ship, the port to which the ship belongs, and that to the best of the deponent's belief, no owmer or part ow'ner of the ship is domiciled in the Commonw^ealth at the time of the commence- ment of the action ; {(l) In an action between co-owners relating to the ownership, possession, employment, or earnings of a ship registered in the Commonwealth, the affidavit shall state the port at which the ship is registered and the number of shares in the ship owned by the party proceeding ; (e) In an action of bottomry, the bottomry bond, and, if it is in a foreign language, also a notarial translation thereof, shall be produced for the inspection and perusal of the Registrar, and a copy of the bond, or of the translation thereof, certified to be correct, shall be annexed to the affidavit. A]).M1J;ALTV. 103 H. C. Rules. Or. XLIIa. rr. 12-17. 12. The Court or a Justice may in any case, if they or he think fit. Am-t without allow the warrant to i.ssue, although the affidavit in the last pre- I'-av*." '' ceding Rule mentioned may not contain all the i)rescribed jiarticulars. The Court or a Justice may also, in an action for wages against a foreign ship, disi)ense with the service of the notice, and. in an action of bottomry, with the production of the bond. 3. Service and Arrest. 13. In Admiralty actions, i/? retn, .service of the writ (^f summons S'-rvui- wiuii or warrant of arrest shall not f»e required when the defendant or j',rAJ"trrai"y '' his solicitor agrees to enter an ap]>earance and put in bail, or pay »'■''""-•" '"''"•• mone}'' into Court in lieu of bail. 14. In Admiralty actions in rem the writ of summons and warrant s.rvkf oi of arrest shall be served by the Marshal or his officer, anrl the partv a?r!Z^"!,'*^ issuing the warrant shall, within six davs from the service thererd. ^•''"'rai'.v file the same in the Registry witli a certificate of service indorsed thereon. 15. In Admiralty actions in rem, the service of a writ of summons Mode of sorvk-.> in rem, or warrant against a shij), freight, cargo, or other property. ',',',,"',"0,"' in rew is to be effected as follows : — ;"'J warrants. (a) Upon a ship, or u])on freight, cargo, or other ])ro])ertv if the cargo or other ])ro])erty is on board the shij), bv nailing or affixing the original writ or warrant for a short time on the mainmast or on the single mast of the ship, or on some other cons])icuous ])art of the vcs.sel. and on taking off the ])rocess leaving a true copv of it nailed or affixed in its j)lace ; (b) Upon freight, cargo, or other property if the car shall not k-'i*- be released except under the authority of an instrument issued from the Registry, to be callcil a release. 28. A party desirinp to prevent the release of any property r'^^M-/"" '" under arrest, shall file in the Registry a notice, and thereupon a caveat against the release of the property shall be entered in a book, to be kept in th<' Registry, called the Caveat Release Book. nr\ I ' i 1 ■ r^ 11 .. I ^ • * 1 I'ayiiiPnl into 29. bxcept as hereinafter provided, a party may ohtam tlie i„urt. release of anv property by paying into Court the sum in respect of which the action has been commenced, or givinu security for the like sum. 30. Cargo, arrested for freight onlv. mav be relea.sed bv filing K.'ieaMo( an affidavit as to the value of the freight, and by paying the amount f„r fniKht only, of the freight into Court, or upon an order of the Court or a Justice upon proof that the freight has already been ])aid. 31. In an action for salvage, the value of the jiroperty under ^'j'^ji^^'^^^^R*' arrest shall t)e agreed, or an affidavit of value filed, before the j)roperty is released, unless the Court or a Justice otherwise orders. 32. .\ j)artv who has given security in the sum in respect of which scrirrity!" the action has been commenced, or paid such sum into Court, and if the action is one of salvage, has also filed an affidavit as to the value of the ])ro))ertv arrested, shall be entitled to a release for the same, unless a caveat against the release is outstanding in the Caveat Release Book. 33. \ release mav also l)e issued bv the Registrar, unless there is a 'V <'*"'?'"' o"" caveat outstanding in the C aveat Release Book, on a consent in writing or diMni-^ai of being filed, signed by the party at whose instance the property has '"' been arrested, or on discontinuance or dismissal of the action in which the property has been arrested. 34. The release, when ol)taiiied. shall l)e left with the Marshal by J/^/^^j^" "*'"' the partv taking it out. who shall al.so at the same time pay all costs, charges, and expenses, attending the care and custody of the property while under arrest : and the property shall th(Meupon be relea.sed. 35. The Registrar may refuse to issue a release without the or^ler ^*^''[ij"^™'|j''|?,y .^ of a Justice. «^r<'>'"- 36. A paity delaying the release of any property by the entry rt,!"a'\insn'ieas<. of a caveat shall be lial)le to be condemned in the costs and damages occasioned thereby, unless he shows to the satisfaction of the Court or a Justice good and sulHiient reason for having done .so. 106 H. C. Rules. ADMIRALTY. Or. XLIIa. rr. 37-48. Arrost notwithstaiKling caveat. Caveat Payment Book. Caveat against l)ayment out of Court. 37. Nothing in these Rules shall prevent a solicitor from taking out a warrant for the arrest of any property, notwithstanding the entry of a caveat in the Caveat Warrant Book ; but the party at whose instance any jiroperty in respect of which the caveat was entered has been arrested shall be liable to have the warrant dis- charged and to be condemned in costs and damages, unless he shows to the satisfaction of the Court or Justice good and sufficient reason for having so done. 38. A book shall be kept in the Registry, called the Caveat Pay- ment Book, in which caveats shall be entered against the payment of money out of Court in Admiralty actions. 39. A person desiring 'to prevent the payment of money out of Court in an Admiralty action must file a notice objecting to the pay- ment, and thereupon a caveat shall be entered in the Caveat Pay- ment Book. Liability for delaying payini'nt. Address of caveator. Withdrawal of caveats. Caveats may be overruled. Mode of trial. 40. The party at whose instance a caveat payment is entered, shall be liable to be condemned in the costs and damages occasioned thereby, unless he shows to the satisfaction of the Court or Justice good and sufficient reason for entering the caveat. 41. If the person entering a caveat is not a party to the action, the notice shall state his name and address, and an address within one mile of the Registry, at which it shall be sufficient to leave all documents required to be served upon him. 42. A caveat may at any time be withdrawn by the person at whose instance it has been filed, on his filing a notice withdrawing it. 43. The Court or a Justice may set aside any caveat. 7. Trial. 44. Admiralty actions shall be tried by a Justice without a jury. Entry of cause for trial. Avoidance of notice of trial. Entry for trial liy party served witli notice. Trial in default of appearance. 45. Notice of trial shall be given before entering the cause or questions or issues for trial ; and a cause may be entered for trial, notwithstanding that the pleadings are not closed, provided that notice of trial has been given. 46. The entry must be made within six days after notice of trial is given ; otherwise the notice of trial shall cease to have effect. 47. If the party giving notice of trial omits to enter the cause or issues for trial on the day or the day after giving notice of trial, the party to whom notice has been given may, within four days thereafter, enter the same for trial, unless in the meantime the notice has been countermanded. , 48. In an Admiralty action, if no appearance has been entered, the plaintiff may, at any time after the time limited for appear- ance, apply to a Justice for leave to enter the action for trial. ADMIRALTY. 107 H. C, Rules. Or. XLIIa. rr. 49-57. 49. In an Adniirultv action, if an aiM)f:'aran(e has been entered. J" ''••''uit "• either party may give notice of trial and enter the action for trial as soon as the last pleading has heen delivered, or as soon as the time allowed to the opposite party for delivering any pleading has e.xpired without sucli pleading having been delivered. 50. In Admiralty actions either party may, at any stage of the Ai'i>oiiitmtnt proceedings, apply to the Court or a Justice for an Order that the '/or trial in' trial shall take place on an early day to be apjjointed by the Court „(f,'i"Jl^"^ or Justice ; and on such ajiplication the Court or Justice may ap- point that the trial shall take place on any day or within any time which the Court or Justice may think fit ; and for such purpose may dispense with giving notice of trial, or may abridge the time or times a]>[)ointed by these Rules for giving notice of trial or for the delivery of pleadings, or for doing any other act or taking any other i)roceedings in the action, upon such terms, if any, as may be just. 51. In an Admiraltv action in rem. if the writ of t;ummons has inca^f^^of , . , 1-1 'i • 1 I • f 1 1 • accounts. been indorsed with a claim to have an account taken, or if the lia- bility has been admitted or determined and the question is simply as to the amount due, the Justice may, on the application of either party, fix a time within which the accounts and vouchers, and the proofs in support thereof, shall be filed, and at the e.\])iration of that time either ])arty may give notice of trial and enter the action for trial. 52. The party entering the cause or questions or issues for trial, |,J'.^'^'i'ngl .y,. shall deliver to the proper officer two copies of the whole of the plead- to be dciivcmi. ings, if any, and of the issues, or of such other proceedings as show the questions for trial, one of which shall be for the use of the Ju.stice at the trial. 53. Upon the trial of an Admiraltv action in rem upon default I'rwf on trial , ' 11' 1 " 1 1 • e • r 1 '" '''''ault of of apjjcarance, the claim must be jtroved to the satisfaction of the a|)p(aran.<- in Court. "•"""" '■" '"" 54. Ill default actions in rem, and in references in Admiraltv -^1*5** ^'C . , 1 ■ 1 rr- 1 • ■ evidence m actions evidence mav he given bv arhdavit. Admiralty ffcn-nci-^. 55. Money paid into Court in an Admiralty action shall not be Payment out of paid out of Court except in ])ursuance of an order of the Court or a „r,i.roniy. Justice. 56. In an Admiralty action a ])arty desiring to make a tender in Tender t«t>e satisfaction of the whole or any part of the adverse party's claim, "y7mym"nt shall pay into Court the amount tendered by him. and sliall file a '"'"'"'"■' notice of the terms on which the tender is made. 57. Within eight davs after the tiling of the notice, the adverse ■^':*''!'.*""";"'' ,,,„, '^. ■. Ill • rejection of party shall hie a notice stating whether he accepts or rejects the tender, tender, and if he does not do so, he shall be deemed to have rejected it. 108 H. C. Rules. ADMIRALTi\ Or. XLIIa. rr. 58-67. Suspension of proceedings. 58. Pending the acceptance or rejection of a tender, the pro- ceedings in the action sliall be suspended. Copies of affidavits to be served. 8. Motions. 59. In Admiralty actions, a copy of every affidavit intended to be used on the motion shall be served with the notice of motion. Application of Rules. 9. References to the Registrar. 60. The following thirteen Rules of this Order shall apply to references to the Registrar, whether the reference is to the Registrar alone, or to the Registrar assisted by a merchant or merchants. Reference to Registrar and merchants. Filing of claim and affidavits. Filing of furtlicr affidavits. Time for hearing. Witnesses. Counsel. 61. The Court or a Justice may refer the assessment of damages and the taking of any account to the Registrar, either alone or as- sisted by a merchant or merchants. 62. Within twelve days from the day when the order for the refer- ence is made, the claimant shall file his claim and his affidavits verifying the same ; and within twelve days from the day when the claim and affidavits are filed, the adverse party shall file his counter afl&davits. 63. After the filing of the counter affidavits, six days shall be allowed to either party for filing further affidavits, and after that period no further affidavits shall be filed, unless by order of the Court or a Justice, or by permission of the Registrar. 64. Within three days from the expiration of the time allowed for filing the last affidavits, the claimants shall file in the Registry a notice, praying to have the reference set down for hearing, and if he does not do so. the adverse party may apply to the Court or a Justice to have the claim dismissed with costs. 65. At the time appointed for the reference, if either party is present, the reference may be proceeded with ; but the Registrar may adjourn the reference from time to time as he may deem proper,^ 66. Witnesses may be produced before the Registrar for examina- tion and the evidence may. on the application of either party, but at the expense in the first instance of the party on whose behalf the application is made, be taken down by a shorthand writer or reporter appointed by the Justice, who shall be sworn faithfully to report the evidence ; and a transcript of the shorthand writer's or reporter's notes, certified by him to be correct, shall be admitted to prove the oral evidence of the witnesses on an objection to the Registrar's report. 67. Counsel may attend tb.e hearing of any reference, but the expenses attending the employment of counsel shall not be allowed on ta.'cation, unless the Registrar is of opinion that the attendance of counsel was necessary. A]>.Mll{AJ/rY. 10'> H. C. Rules. Or. XLIIa. rr. 68-79. 68. When a reference Jias been heard, the Registrar shall make a H'lJ,'?^''/ repoit in writing of the result in the form of a certificate, showing the amount, if any found due. and to whom, together with any further particulars that may be necessary. 69. The Registrar may. if he thinks ht, report whether any and '''**'^*- what part of the costs of the reference shall be allowed, and to wliom. 70. When the report is ready notice shall be sent to the parties, jmrtics." and either ])arty may thereu|)on take up and file the rejiort. 71. Within two weeks from the date of the filing of the Registrar's Motion to var>-. report, either party may give notice of motion to vary the report, specifying the items objected to. 72. At the hearing of the motion the Justice may make sucli order onitr tii.r.on. thereon as he thinks just, or may remit the matter to the Registrar for further inquiry or report. 73. If a notice of motion to varv the report is not tiled within two nmuition weeks from the date of the filing of the Registrar's report, the report "''^'"'" '" shall stand confirmed. Id. Appraisement or Sale. 74i. lu Admiralty actions the Court or a Justice may, either Apprai-ininit. before or after final judgment, order any property under the arrest of the Court to be appraised, or to be sold without appraisement, and either by public auction or by private contract. 75. If the property is deteriorating in value, the Court or a Justice >^"i<'of may order it it be sold forthwith. property. 76. If the property to be sold is of small value, the Court or a ,^);i,V,^^^„„ j,, Justice may, if they or he think fit, order it to be sold without a com- •■•■rtnin ca-cs. mission of sale being issued. 77. The Court or a Justice may, either before or after final judg- ',^,','1,^^*' "^ ment, order any property under arrest of the Court to be removed, or any cargo under arrest on board ship to be discharged. 78. The appraisement, sale, and removal of property, the dis- Oomn.Usions. charge of cargo, antl the demolition and sale of a ves.sel condemned under any Slave Trade Act. shall, except as provided by Rule 76 of tliis Order, be effected under the authority of a commission which, unless the Court or a Justice otherwise orders, shall be addressed to the Marshal, and executed by the Marshal or his officers. 79. Tlie commission sliall, as soon as possil)le after its execution. ,^n,",^.,"J,n., be tiled by the Marshal, with a return setting forth the manner in which it has been executed. 110 H. C. Rules. ADMIRALTY. Or. XLIIa. rr. 80-89. Gross proceeds of sale to be paid into Court. Taxation of Marshal's expenses. 80. The Marshal shall pay into Court the gross proceeds of sale of any property which has been sold by him. and shall at the same time bring into the Registry the account of sale, with vouchers in support thereof, for taxation by the Taxing Officer, who shall proceed to tax the same. 81. Any person interested in the proceeds may be heard before the Taxing Officer on the taxation of the Marshal's account of ex- penses, and an objection to the taxation shall be heard in the same manner as an objection to the taxation of a solicitor's bill of costs. ]\Tiniitc Book. Inspection of Minute and Caveat Book. Inspection of records. By whom to Ix made. After action terminated. 11. Books, Etc. 82. There shall be kept in the Registry a separate book, to be called the " Admiralty Minute Book," in which the Registrar shall, enter in order of date, under the head of each Admiralty action, and on a page numbered with the number of the action, a record of the com- mencement of the action, of all appearances entered, all documents issued or filed, all acts done, and all judgments and orders made in the action, whether made by the Court or a Justice or by consent of the parties. 83. Any solicitor may, free of charge, inspect the Admiralty Minute Book, the Caveat Warrant Book, the Caveat Release Book, or Caveat Payment Book. 84. The parties to an Admiralty action may, while the action is pending, and for one year after its termination, inspect, free of charge, all the records in the action. 85. Except as provided by the two last preceding Rules, no person shall be entitled to inspect the records in a pending Admiralty action without the permission of the Registrar. 86. In an Admiralty action which is terminated any person may, on payment of the prescribed fee, inspect the records in the action. To be left witii Marshal with written instructions. Verification of service or execution. 12. Service of Process by Marshal. 87. Every instrument to be served or executed by the Marshal shall be left with the Marshal by the party at whose instance it is issued, with written instructions for the service or execution thereof. 88. The service or execution of any instrument by the Marshal or his officer shall be sufficiently proved by his return, which shall state by whom the warrant has been served or executed, and the date and mode of service or execution, and shall be signed by the Marshal. When any instrument issued in an Admiralty action is served by any other person, the service shall be proved by affidavit. Duration of caveat in Admiralty actions. 13. Titne. 89. In Admiralty actions a caveat, whether against the issue of a warrant, the release of property, or the payment of money out of Court, shall not remain in force for more than six months from the date thereof. ADMIRALTY— PROPERTY. Ill H. C. Rules. Or. XLIIa. rr. 90-94. Or. XLIII. r. 1. 90. In Admiralty actions every instrument requiring to lie served ^.'Admiralty'''' shall be served within twelve months from the date on which it bears actionv date ; otherwise the service shall be of no effect. \\. Costs. 91. In an Admiraltv action a i)artv claiming an excessive aniouiu, io-i-..,i • 1 1 r 1 • " r . IV ■ ^ 1 • 1 11 '■X(•^1»^lve claims either by way of claim or of set-on or counter-claim, may he ordered i„ Admiralty to pay all costs and damages occasioned by the excess. action. 92. In an Admiralty action, if a tender is rejected, but is after- TiikLt wards accepted, or is held by the Court to be sufficient, the party l^.jcctid'Vn rejecting the tender shall, unless the Court otherwise orders, pay Acimiraity Jf. ifi ^ • 1 '!.< action. all the co.sts incurred after the tender is made. 93. When the sum in disj}ute in an Admiralty action does not fo»ts in small exceed £50, or the value of the res does not exceed £100. one-half ,»«""'"'' ^ only of the ordinary costs on the lower scale shall be allowed. When costs are awarded to a plaintiff, the expression " suni in disj)ute " means the sum recovered by him in addition to the sum, if any, counter-claimed from him by the defendant ; and, when costs are awarded to a defendant, it means the sum claimed from him, in addi- tion to the sum. if any, recovered by him. 94. The Court or a Justice may. in any Admiralty action, order J^^^|^'^j''^^^|'j. '" that half costs only shall be allowed. action:.. ORDER XLIII. Inspection of Property : Interim Pre.serv.\tiox. Cu.stouy, and Management of Property : Receivers : Stop Orders. 1. Interim Preservalion, Custody, and Management of Property. 1. The Court or a Justice mav. upon the ai)plication of anv ))artv NHiuction. , - , / ' • , 1 ■ ] " ilrtcntion. or to a cause or matter, and upon such terms as are just, make any order ,,r,sorvation of that is necessary for the insi)ection, detention, or jireservation, of any ll',^;^";.^^/^^ property or thing, being the subject-matter of the litigation, or as to action, which any question may arise therein, and for any such ])urposes mav authorize any i)erson to enter upon or into any land or building in the i)o.s.session of any jnirty to the cause or matter, and for any such ])urposes mav authorize any samples to l)e taken, or any observation to be made or experiment to be tried, which is nece.ssary or expedient for the purpose of obtaining full information or evidence, [a) (b) As to time for making tlie ajujlication; see r. 7 ittfra. As to application for ins|)eition by a jury; see r. 3 iiifni. As to preservation or interim custody of the subject matter of a disputed contract; see r. 4 infra. As to order for sale of |)erishable gf)ods; see r. 6 infra. As to inspection of documents; see Order XXIX., r. 11. (o) In an action against the Commonwealth for infringement of jiatent after the statement of claim was filed and before defence, the i)laintiffs applied for the nspection of the apparatus used by the defendant. An application for a patent 112 H. C. Rules. PROPERTY— RECEIVERS. Or. XLIII. rr. 2-6. in respect ot the apparatus used by the Commonwealth was subsequently made, and the specification was made public. Held by the High Court that no order for inspection should be granted at that stage of ])roceedings. MfirconPs Wireless Tdegmph Compiuiy, Ltd. v. C ovimonwtalth (No. 1) (15, C.L.R. 685 [1912]). (6) Held by the High Court (per Griffiths, C. J., and Barton, J., Isaacs, J. dis- senting), that where a claim is made by the Crown that inspection should not be granted on the ground that, in the opinion of the Minister of the Crown, such in- spection would be deterimental to the public welfare, it is not the Court's duty to concede the claim without any inquiry, but it ought first to ascertain what is the nature of the alleged State secret, and whether facts discoverable on inspection can in any intelligible sense prejudice the public welfare. Marconi's Wireless Telegraph Company, Ltd. v. Commonwealth {^0. 2), (16. C.L.R. 178 [1913]). Application for special leave to appeal against the decision of the High Court was made to the Privy Council. The application was dismissed (4th July, 191.3). The proceedings before the Privy Council were not reported. Inspoction by Jnstic.\ Inspection by jury. 2. Any Justice by whom any cause or matter is heard or tried, with or without jury, or before whom any cause or matter is brought by way of appeal, may inspect any i)roperty or thing concerning which any question arises therein. 3. The provisions of Rule 1 of this Order as to inspection shall apply to inspection by a jury, and in that case the Court or a Justice may make all such orders upon the Marshal or other proper officer as are necessary to procure the attendance of the jury at such time and place, and in such manner as the Court or Justice thinks fit. The Court or Justice shall by the order make such provision as to defraying the expenses of the inspection as is just. Preservation or interim eustolv of s'lljject matter of dispute 1 contraet. Application wlien and how made. 4. When a prima facie case of liability under a contract is estab- lished, the Court or a Justice may make an order for the preservation or interim custody of the subject-matter of the litigation, notwith- standing that there is alleged as matter of defence a right to be relieved wholly or partially from the liability ; or may order that the amount in dispute be brought into Court or otherwise secured. As to the time at which an application for such an order may be made; see r. 5 infra. As to payment into Court ; see Order XXI. 5. An application for an order under the last preceding Rule may be made by the' plaintiff at any time ; and may be made upon the pleadings, if his right appears by the pleadings ; or, if there are no pleadings, upon proof of the facts by affidavit or otherwise to the satisfaction of the Court or a Justice. As to trial without pleadings ; see Order XVI. Order for ^sale of perishable goods. Ac. 6. The Court or a Justice may, on the application of any party to a cause or matter, make an order for the sale, by any jDersons named in the order, and in such manner, and on such terms as the Court or Justice thinks desirable, of any goods, wares, or merchandise being the subject of the cause or matter, or as to which any question arises therein, which are of a perishable nature or likely to be injured by keeping them, or which for any other juf^t and sufficient reason it is desirable to have sold at once. As to time for making applications; see r. 7, infra. INJUNCTIONS. 113 H. C. Rules. Or. XLIII. rr. 7-11. 7. An application for an injunction or receiver, or for an order it/ju,\cuon"V"'^ under Rule 1 or Rule 6 of this Order, niav be made to the Court or a nciivcr or for -, , . 1 , . 1- .• r" • • i- Order under Justice by any party. An apj)lication for an injunction or receiver uuieiore. may be made either ex parte or ujion notice. An a])plication for an order under Rule 1 or Rule 6 may be made upon notice to the oppo.site party at any time after the commencement of the cause, and. if the ])arty making the application is not the plaintiff, after appearance by iiim. 8. When an application is made before trial for an injunction or Eady triaiof other order, and it ap])ears to the Court or Justice that the matter in controversy in the cause can be most conveniently dealt with Ijy an early trial, without first going into the whole merits on affidavit or other evidence for the purjjoses of the application, the Court or Justice may, subject to the right of either party to demand a jury, make an order for such trial accordingly, and may direct the trial to be had at any time or place, and in any manner in which a cause may be tried, and in the meantime may make such order as the justice of the case requires. Parties are not ontitk-d as of riglit to a jury ; .see H.C.P. Act, s. 12 ; Order XXXIII., r. 2. 9. When an action is brought to recover si)ecific proijerty other Order for -ri "iJ rrCOVlTN' Of than land, and it ap])ears from the pleadings, or, if there are no j)lead- >\„cm- property, ings, it is made to api)ear. by affidavit or otherwise to the satisfaction !,\Vi',ject\o'ii?n!'" of the Court or a Justice, that the party from whom recovery is .sought 'Re- does not dispute the title of the party seeking to recover the property, but claims to retain it by virtue of a lien, or otherwise as .security for any sum of money, the Court or a Justice may at any time order that the party claiming to recover the pro])erty be at liberty to pay into Court, to abide the event of the action, the amount of money in respect of which the lien or security is claimed, and such further sum. if any. for interest and costs as the Court or Justice directs, and that. uj)on such payment into Court being made, the property claimed shall be given u]) to the party claiming it. As to trial without pleadings; sec Order X\'I. 10. In anv action in which an injunction has been or might have injunction been claimed, the ])laintiff may. before or after judgment. api)ly for reiM'tUion an injunction to restrain the defendant or respondent from the '"epe- ;^^^ ;^™"^'j["^'j**'' tition or continuance of the wrongful act or breach of contract com- contract, plained of. or from the commission of any injury or breach of contract of a like kind relating to the same i)roperty or right, or arising out of the same contract ; and the Court or a Justice may grant the in- junction, either upon or without terms, as may be just. 11. Everv interlocutorv order for an injunction shall contain an Damages for 1 1 • "i 1 1 • . •. • . 1 i i iU injunction undertaking by the party at whose instance it is granted to pay to the wrongly granted, opposite ])arty any damanges which such op])osite jiarty may sustain by reason of the injunction, and which the Court or .Justice thinks he ought to pay. 8 114 H. C. Rules. RECEIVERS— SECURITY. Or. XLIII. rr. 12-16. An application for an order for payment of such damages shall be made by motion, and the damages may be ordered to be assessed in any manner in which damages may be assessed in an action. As to assesraont of damages in an action by writ of inquiry; see Order XXXIII., r. 25 et seq. As to enforcing undertakings; see Order XLI., r. 3. Receivers — Security by and allowance to. Form of security. 2. Receivers. 12. When an order is made directing a receiver to be appointed, the person to be appointed shall, unless otherwise ordered, first give security, to be approved by the Court or Justice, and taken before the Registrar or a commissioner for affidavits, duly to account for what he shall receive as such receiver, and to pay the same as the Court or Justice shall direct ; and the person so to be appointed shall, unless otherwise ordered, be allowed a proper salary or allowance. As to duty of receiver or manager in jjossession of property in managing and dealing therewith; see H.C.P. Act, s. 29. As to liability or receiver or manager to be sued without leave of the Court; see H.C.P. Act, s. 30. As to time for application for appointment : see r. 7 supra. As to security generally; see Order XXVIII. Where receiver appointed in Court. Adjournment into Chambers, to give security. 13. When a judgment or order is pronounced or made in Court by which a person therein named is appointed to be receiver, the Court may adjourn the cause or matter to Chambers, in order that the person named as receiver may give security as in the last preceding Rule mentioned, and may thereupon direct such judgment or order to be drawn up. Order to prevent transfer or ])ayment without notice to applicant. Mode of application. 3. Stop Orders. 14. Any person claiming to be entitled to or to have a charge upon any moneys or securities standing to the credit of a cause or matter in Court may apply to the Court or a Justice for an order to prevent the payment or transfer thereof to any person without notice to him. 15. Notice of the application must be given to the persons interested in such parts of the moneys or securities as are sought to be affected by the order asked for, but need not be given to the parties to the cause or matter or any other persons, unless they are so interested. As to procedure by summons; see Order XLVI. As to service generally; see Order LV. Costs. 16. The costs of and occasioned by any such application or order shall be in the discretion of the Court of Justice. As to costs generally; see Order LIV. STAY. 115 H. C. Rules. Or. XLIV. rr. 1-5. ORDER XLIV. Staying Proceedings. 1. The Court or a Ju.stice may, at any time after the in-'^titution ^'Jj",;'™.'^^ ^^ of any cause or matter, direct a stay of proceedinf^s, either as to the stay, whole cause or matter, or as to any proceedings tlierein, or as to any proceedings under a judgment or order given or made therein, (a) A.s to staying proceeding.s pcndinj; tlit- giving of security for costs; see Order XXVIir., r. 14. As to summons not operating as a stay of proceedings, unless stay included therein; see Order XLVI., r. 6; As to stay of proceedings pending an apjieal, see H.C.P. Act, s. 38 ; Rules of the High Court, Part II., s. 1, r. 26, and Part II., s. 3, r. 22. (a) In an action against the Commonwealth for infringment of patent the High Court had, (m the ap])li(ation of the plaintiffs, made an order for inspection. A notice for a stay of ])r<)eeedings under the order, j)ending an application to the Privy Council for .si)eeial leave to appeal, was made by the defendant, and the «ircum.stances were such that unless the stay was granted the appeal would bo rendered nugatory, and that if it was granted simply the whole benefit of the action might be lost totiie ])laintiffs. Held by the High Court that i)roce.edings should be stayed until tlie liearing of the application to the Privy Council on the defen- dants undertaking to e.\])edite the application and to pay such damage.-*, whether legally claimable or not, as the High Court might think just and fair as comitcnsa- tion to the j)laintiffs for any damage they might sustain by reason of the .stay. Mftrroiii'-s Wirelesn Telegraph Co., Ltd. v. Commonwealth (No. 3), (16 C.L.R. 384 [1913]). 2. An application to stay proceedings on the ground that there is ^/*^g^j„^, no reasonable or probable cause of action or suit, or that the action on srouud of or suit or ])roceeding is vexatious and oppressive, or is an abuse of the pr"i^^ur,.. procedure of the Court, may be made at any time, and whether the plaintiff does or does not admit the allegations of fact, if any, on which the application is founded. As to striking out pleadings ; see Order XVII., rr. 30, 31. 3. The Court or a Justice may stay the jjroceedings in any cause Jl^^^'^^jng, or matter improperly instituted in the name of any person by a ne.xt friend. As to proceedings in the name of an infant or person of unsound mind by his next friend; see Order II., rr. 12, 14, 15. 4. When at the trial of a cause before a Justice with a jury a juror withdrawing is withdrawn with the consent of the i)arties, the withdrawal shalP'"^""- have the eiTect of an order by consent for the staying of all i)roceed- ings in the cau.se or matter, except so far as the Court at the time of the withdrawal, and with the consent of the parties, otherwise orders. 5. When an action is discontinued or dismi.ssetl for want of prose- |;J,"[,'%,tf^°"j. cution, or judgment of nonsuit is entered, if, before payment of the costs, a subsequent action is brought for the same, or substantially the same, cause of action, the Court or a Justice may order that pro- ceedings in the subsequent action shall be stayed until such costs have been })aid. As to giving security for costs when a second action is brought for the same cause of action; see Order XXVIII., r. IQ. 116 CONSOLIDATION— CHAMBERS. H. C. Rules. Or. XLV. Or. XLVI. r. 1. ORDER XLV. Consolidation. Consolidation of 1. Causes 01 matters in the Court may be consolidated by order of mrtters'.'^ the Court or a Justice if it appears that substantially the same question ' is involved in all the causes or matters, or that the decision in one cause or matter will determine the others. The application may be made by any person who is a party to two or more of the causes or matters. As to payment into Court in consolidated action ; see Order XXI., r. 8. As to consolidation when proceedings by information of quo warranto; see Order XLVII., r. 39. ORDER XLVI. Chambers. 1. Jurisdiction in Chambers. General 1. The following matters may be heard and determined by a Jus- 3uri> K ion. ^^^^^ .^^ Chambers, that is to say : — (1) Any application which by any Act or by Rules of Court is authorized to be made to a Justice, and is not specifically required to be made to a Justice in Court ; (2) Applications for payment or transfer to any person of any monev or securities standing to the credit of any cause or matter where there has been a judgment or order declar- ing the rights of the applicant, or where the title of the applicant depends only upon proof of the identity, or of the birth, marriage, or death, of particular persons ; (3) Applications for payment or transfer to any person of any money or securities standing to the credit of a cause or matter, when the nominal amount or value of either the money or the securities proposed to be dealt with does ■ not exceed £500, exclusive of interest ; (4) Applications for payment to any person of the interest or dividends on any money or securities standing to the credit of a cause or matter, whether to a separate account or otherwise ; (5) Applications relating to the investment or disposition of money or securities in Court ; (6) Applications for orders on the further consideration of any cause or matter, when the order to be made is for the dis- tribution of any fund or property ; (7) Applications in a cause or matter for or relating to the sale of propertv by auction or private contract, and as to the manner in which the sale is to be conducted, and for pay- ment into Court and investment of the purchase money ; (8) Applications for directions as to the management of any property under the control of the Court. As to application for payment of transfer of money or securities out of Court; see r. 3 infra. As to further consideration; see Order XXXIII., r. 22. CUAMBKKS. 117 H. C. Rules. Or. XLVI. rr. 2-8. 2. Procedure in General. 2. Every application made to a Justice in Clianiber.s shall, except Ai-piitations to -11. , , , , . Ik- liiaiit- llV as hereinafter mentioned, be made by summons, sifjued by a Justice suimnuns unki-s or the Refjistrar or other proper officer, and .sealed with the office seal. " i'"^"- The summons mu.st be .served on the opposite i)arty. As to ex parte applications in general; see r. 4 infra. As to signing and sealing of summons; compare H.C.P. Act, s. 4. As to service of summons; see r. o iufr"'"^- or matter; and upon the hearing; of the summons the Ju.stice may make any such order, and give any such directions, relative to or con- sequential on the matter of the application, as are just. As to summons for directions; .see Order .\V. 8. Anv application may. if the Ju.stice thinks Ht. \ye adi.mrncd from ^V',irt""r'''''"' '" Chambers into Court. " ctmmberv. Any api)lication made in Court which might have l)eon made at Chamlters mav be adjourned from Court into Chambers. 118 H. C. Rules. CHAMBERS— WRITS. Or. XLVI. r. 9. Or. XLVII. rr. 1-5. Signature of Justice-j' Order. 9. An order made by a Justice in Chambers and signed by tlie Registrar and sealed with the office seal shall be sufficiently au- thenticated. ORDER XLVII. Certiorari : Mandamus : Prohibition : Qup Warranto : Writ OF Assistance. Application, liow iu;iLle. Order to be rcturnaljle betori' Full Court. Title of affidavits Title of proceedings. Order absolute. 1. General. 1. Applications for writs of Certiorari, Mandamus, or Prohibition, or for leave to exhibit informations of Quo Warranto, or for relief of like nature to Mandamus or Quo Warranto, may be made to the Court or a Justice. The application shall be, in the first instance, for an order calling on the parties interested in resisting the application to show cause why the writ should not be issued, or the information filed, or other relief given, except in the case of applications by a Crown Law officer ex officio for a writ of Certiorari or leave to file an information of Quo Warranto, in which case the order shall, if asked, be absolute in the first instance : Provided that the Court or Justice may in its or his discretion, in any case in which it appears necessary for the advancement of justice, grant an order absolute in the first instance for a writ of Certiorari, Mandamus, or Prohibition. The fee on sealing a writ of Mandamus, Certiorari, Habeas Corpus, or Pro- hibition is £1. 2. Orders to show cause shall be to show cause before a Full Court, unless the matter appears to be one of urgency, in which case the Court or Justice may make the order returnable before a single Justice in Court or Chambers. 3. Affidavits intended to be used on the application shall be en- titled " In the High Court of Australia," without any other title. As to afifidavits generally; see Order XXXV. 4. The order to show cause and all subsequent proceedings shall be entitled '" The King against " the judicial or other authority or other person to whom the writ is proposed to be directed, or against whom the information is proposed to be exhibited, " Ex parte" the applicant. In the case of a writ of Certiorari, Mandamus, or Prohibition, which is proposed to be directed to a judicial or public authority, the au- thority shall be described by his or their name of office, and, in the case- of justices in a court of summary jurisdiction, they shall be described, as the justices at the place where the court is held. The applicant shall, in the case of applications for writs of Man- damus or relief of like nature, and of applications for writs of Pro- hibition, be called the prosecutor, and, in the case of applications for informations of Quo Warranto or relief of like nature, the relator. 5. An order absolute need not be served, but the costs of service thereof may be allowed in the discretion of the taxing officer, if the writ is not actually issued or the information is not actually exhibited. CERTIORARI. lli> H. C. Rules. Or. XLVII. rr. 6-11. 6. When the order is made al),solute the Court or a Justice may. "'"■*'•• except as otherwise i)rovided by these Rules, dispose of the costs of the proceedings either by the final judgment or by a separate order. 2. Certiorari. 7. An order nisi for a writ of Certiorari to remove a judgment, order, ''"^'/,"^';,*"'* or other proceeding of an inferior Court or tribunal, or of justices, §hall not be granted unless it is made within six months after the date of the judgment, order, or other jjroceeding nor unless it is proved upon affidavit that the applicant has given six days' notice of the intended application to the Court, justice, or other person or persons by or before whom the judgment, order, or other proceeding was made or taken, or to two of them if more than one. ' As to computation of time limited by this rule in respect of notice of application; see Order LIII. 8. Anv mistake or omission in any judgment, order, or other pro- [*I'{'j^*/^"?J** ceeding, which is intended to be relied upon as a ground for quashing oni-r. the judgment, order, or proceeding, shall be stated in the order nisi ; otherwise an objection on account of the omission or mistake shall not be allowed. 9. In the case of orders to show cause why a writ of Certiorari Service, should not be issued addressed to justices in a court of summary jurisdiction, service of the order on the clerk of the court shall be sufficient. As to service generally; see Order LV. 10. A writ of Certiorari to remove a judgment or order of any Court ^^^,"r''>' '•"" or tribunal shall not be issued, except on the ap])lication of a Crown Law officer, until the ap])licant has given security in the sum of Fifty pounds conditioned to prosecute the writ with effect at his own cost without delay, and to pay to the party in whose favour the judgment or order was given or made, in the event of its being confirmed, such costs, if any, as the Court shall order him to pay. As to issue of an order absolute for certiorari in the first instance at the request of a ("rown Law Officer; see r. 1 supra. As to security in general; see Order XXVIII. The fee on sealing a writ of certiorari is £1. 11. When cause is shown against an order nisi for a writ of ^ '^^r- ^^>r^i^r t.. ^^^ tiorari to bring up a judgment or order, the Court, if it directs the writ in-tan.v. to issue, may by the same order direct that the judgment or order shall be quashed on return without further order ; and in that case no security need be given as required by the last preceding Rule, and a memorandum to that effect shall be indorsed upon the writ by the officer by whom it is issued. In any such case the judgment or order shall be quashed, upon being returned to the Court, without further order. 120 H. C. Rules. CERTIORARI— :\IANDAMUS. Or. XLVII. rr. 12-17. When no cause sliowu. Prosecutor to be named. Persons to show cause. 12. When cause is not shown against an order nisi for a writ of Certiorari to bring up a judgment or order, or when the order is abso- lute in the first instance, the apjilicant shall apply to the Court or a Justice for an order to quash the judgment or order. Such application shall be made upon notice to the parties interested in su])])orting the judgment or order. As to granting an order abolute in first instance; see r. 1 supra. 3. Mandamus. 13. An order nisi for a writ of Mandamus or for relief of a like nature, shall not be granted except upon the application of some per- son who is interested in the relief sought, and the applicant must state by his own affidavit that the application is to be made at his instance as prosecutor. As to costs, see r. 6 supra ; 23 infra. 14. The Court or Justice may direct that the order nisi shall be addressed to, and served upon, any person who, in the opinion of the Court or Justice, ought to have notice thereof ; and any person a\ ho, in the opinion of the Court or Justice, would be affected by the issue of the peremptory writ may show cause against the order nisi, and, if he does so, shall be liable to costs as if the order had been addressed to him. Form 01' writ. Time forjutiirn of writ. 15. Unless otherwise ordered by the Court or Justice, every writ of Mandamus shall command the person to whom it is addressed to do the act in question, or show cause why he has not done it. But the Court or Justice may direct that the command shall be peremptory in the first instance. The fee on sealing a writ of nmrulamus is £1. 16. Unless otherwise ordered by the Court or Justice, the writ shall be returnable within the same time after service as is allowed for appearance in the case of a writ of summons. As to return to writ; see r. 19 infra. As to peremptory writ; see rr. 22, 23. As to times allowed for appearance to a writ of summons; see Order V., r. 14. 17. When a writ of JMandamus is directed to one person only, the original writ must be personally served upon him by delivering it to him. When the writ is directed to two or more persons, it shall be per- sonally served upon all of them but one in the manner prescribed for personal service of writ, and shall be served upon the remaining one by delivering the original writ to him. As to personal service generally; see Order LV. As to service of writ of summons; see order VIII., r. 2. MANDAMUS. 121 H. C. Rules. Or. XLVII. rr. 18-24. 18. When a writ of Mandamus is din-cted to justices or to a cor- ^uJJ*j|.^^o" poration. or to puhlic authorities, it sliall be served on so many of the 'oriKjrate justices or of the officers or members of the corporation or public authority as are competent to do the act commanded, unless by law .'■ome other mode of service is sufficient. 19. The persons to whom a writ of Mandamus is directed shall, "•""■"• within the time allowed by the writ, file the writ in the Rejiistry. together with a certificate, written thereon or annexed thereto, and signed by them, setting forth that they have done the act commanded by the writ, or else setting forth the reason why they have not done so. As to the time for the return; see r. 16 supnt. 20. A co])y of the retuiii shall be served upon the prosecutor on the ^'■'■\"•■• same day on which it is filed. 21. If the return does not certify that the act commanded has been J'.',*^^^!!"^ '° done, the same proceedings shall be had and taken, and within the same time, as if the return were a defence in an action in which the prosecutor was the plaintiff and the i)erson to whom the writ is directed was the defendant, and had ])leaded the return as his defence. 22. If the questions of fact and law, if any, raised by the return i''^r^'»i'tor>- are determined in favour of the prosecutor by judgment of the Court or otherwise, the prosecutor shall be entitled to a peremptory writ of Mandamus, conDiianding the persons to whom the first w-rit was directed to do the act therein commanded ; and such writ shall be awarded by the judgment, if any, or, if there is no judgment, by a separate order. 23. When a percmijtorv writ is awarded in the tii'st instance, the co'^ts when y. T • 1 11 1 • r 1 1- 1 1 I'tTcpniton.- writ Court or Justice shall, at the time of granting the writ, direct by and awanicd in first to whom the costs of the jjroceedings shall be paid. oiK^'icmV'."^ °" When a peremptory writ is not awarded in the first instance, and the return to the writ certifies that the person to whom it is addressed has done the act commanded by the writ, an application for an order for the costs of the j)roceedings may be made at any time after the return is filed, not being later than the fourth day of the Sittings of a Full Court held next after the day on which the return is fiknl. The application shall be made to the Court or Justice by whom the writ was awarded. 24. When upon an application for a writ of Mandamus it apnears I'roc.ttiiML'- in that some person other than the ])rosecutor claims that the jterson to int,rri.;i.i.r. whom it is ]iro])osed to direct the writ shall do some act inconsi.stent with the act which the prosecutor claims to have done, the ]»erson to whom the order nisi or writ is directed may aj)])ly to the Court or a Justice for an order that the last-named ])erson be substituted for him in all subsequent proceedings up to the issue of a jieremptorv writ of Mandamus ; and the Court or Justice may make such order on the application as is just. 122 H. C. Rules. Time. PROHIBITION. Or. XLVII. rr. 25-31. 25. An application for a writ of Mandamus, or an order in the nature of a Mandamus, to a judicial tribunal to enter a minute of ad- journment and hear a matter, shall be made within two months of the date of tl'.e refusal to hear, or within such further time as is, under special circumstances, allowed by the Court or Justice. Mandamus by order. 26. In any case in which the Court may direct the issue of a perem[)tory writ of Mandamus, the command may be expressed in an order of the Court without the issue of a writ, which order shall have the same effect as peremptory writ of Mandamus. I'li>adinas in I'roliibitiou. Proceeding on judgment. 4. Prohibition. 27. The Court of Justice may in any case, instead of directing the issue of a writ of Prohibition, direct the prosecutor to deliver to the opposite party a statement of claim setting forth the facts upon which his claim to the w^rit is founded ; and thereupon the same proceedings shall be had and taken in all respects as on a statement of claim in an action. • As to application for writ; see rr. 1, 2. As to statement of claim; see Order XIX. 28. If judgment is given for the prosecutor, the judgment shall in- clude a direction that a writ of Prohibition shall issue. The fee payable on sealing a writ of prohibition is £1. Writ of Procedendo. 29. When a writ of Prohibition has been issued, and it is afterwards made to appear to the Court or Justice that relief ought to be given against the judgment or order by w^iich the writ was awarded on any ground on which relief might be given against a judgment in an action, the Court or Justice may direct that a writ, called a writ of Procedendo shall be issued commanding the judicial tribunal to which the, writ of Prohibition was issued to proceed to hear or determine the matter in question or othersise proceed therein as if the writ of Prohibition had not been issued. Prohibition by order. 30. The Prohibition may be expressed in an order of the Court without the issue of a writ, which order shall have the same effect as. a writ of Prohibition. Relator to be named. 5. Qico Warranto. 31. Upon an application for an order for leave to exhibit an infor- mation of Quo Warranto, or for relief of a like nature, the applicant must state by his own affidavit that the application is to be made at his instance as relator. The Court or a Justice may allow a new^ relator to be substituted for the original relator, on such terms as to costs or otherwise as are just. As to application for an order; see rr. 1,2 supra. QUO WA in; AN TO. 123 H. C. Rules. Or. XLVII. rr. 32-38. 32. Every (Ejection intended to be made to the title of the defeii- <"'J'Hi'>i»- 1« in- dant or person called on to show cause shall be stated in the order ni.si. ni-i.*^ and no objection not so stated shall be raised on the return of the order nisi, or in the information, without the leave of the Court or Justice. 33. An iiifoniiatioii shall imt. without the leave of the Court, •'^'■'■'"■ity f..r given in open Court be filed until the applicant has given security in '"" ' the sum of Fifty pounds conditioned to prosecute the information with effect, and to pay to the defendant such costs, if any, as the Court or a Justice shall order. As to security in general; see Order XW'III. 34. The information shall set forth the facts relied on by the re- Fonuof lator as invalidating the title of the defendant to the office in question '"'""""*'""• in the same manner as in a statement of claim. As to pleading gen(>rally; see Order X\'II. As to statement of claim; see Order XIX. 35. The information shall be in the name of the Attorney-General fpr"jj.',."^'f'*"'^ or the relator, as the case may be, on behalf of His Majesty, and shall infomiation. be signed by the Attorney-General or relator A copv of the information shall be served upon the defendant, or. if at the return of the order nisi he aj)peared by solicitor, then upon his solicitor. 36. The defendant shall plead to the information within the same ncfencpand time and in the same manner as if the information were a statement of p'JoccedTngs. claim in an action, and thereupon the same ])r()cee(lings shall be taken in all respects as if the ])roceedings by information were an action in which the relator was the plaintiff and the defendant was the defen- dant. As to pleading after statement of claim; .see Orders X\'I1., XX. 37. If judgment is given for the Crown, the judgment shall award Jn'iuni.iit. that the defendant be ousted from the office usur|)ed by him. 38. The defendant may, if he thinks lit. (lischiim the office in ques- ni-ciaimor. tion. Such disclaimer shall be signed by the defendant and attested by a commissioner for affidavits, and shall be filed, and a copy thereof shall be served on the relator within the time allowtvl for delivering a defence. The relafor shall thereu[)on, unless the Court or a Justice otherwi.se **'^'"- orders, be entitled to enter judgment of ouster with costs, including the costs of the order giving leave to exhibit the information. As to time allowed for delivering a defence; see Order XX.. r. (i. The fee payable on filing a di.sclaimer of ofliee by defendant is £1 124 H. C. Rules. t'onsolldation. HABEAS CORPUS. Or. XLVII. rr. 39-40. Or. XLVIII. rr. 1-4. 39. When proceedings by information of Quo Warranto, or for relief of a like nature, are pending against several persons for usurpa- tion of offices of the same nature, and upon the same grounds of ob- jection, the Court or a Justice may direct the proceedings to be con- solidated, as in the case of actions, and for that purpose may make such orders as are just. But an order for consolidation or stay of proceedings against any defendant shall not be made upon the application of a defendant, unless he undertakes to enter a disclaimer in the event of judgment being given for the relator in the proceeding which is not stayed. As to consolidation of causes or matters; see Order XLV. As to stay of proceedings; see Order XLIV. 6. Writ of Assistance. To issue by order 40. A writ of assistance may be issued upon the order of a fiat of a of Justice. Justice, to be granted upon an ex parte application. The fee payable on sealing a writ of assistance is 10 /-. ORDER XLVIII. Order for production of person in confinement for examination or trial. How api>lii'd for. How granted. Habeas Corpus. 1. The Court or a Justice may by order, and without the isstie of a writ of Habeas Corpus, direct the production of any person in con- finement for the purpose of his examination as a witness, or for his trial, at a time and place to be named in the order. The fee payable on sealing a writ of Habeas Corpus is fl. 2. Applications for writs of Habeas Corpus, or for orders for the production of persons in confinement for the purpose of examination or trial, may be made to the Court or a Justice ex parte. The affidavits upon w hich the application is made shall be entitled " In the High Court of Australia " without other title, except in the case of applications for orders for the production of persons for ex- amination as w itnesses in causes or matters pending in the Court, in w^hich case they shall also be entitled in the cause or matter. 3. The Court or Justice may make an order absolute in the first instance for the issue of the writ or production of the person, or may make an order calling upon the person vrho would be required to obey the writ or order, if granted, to show cause why it should not be issued or made. The order and all subsequent proceedings shall be entitled " The King against " the person to whom the writ or order is directed, except in the case of orders for the production of persons as witnesses which shall be entitled in the cause or matter. 4. Writs of Habeas Corpus, and orders for production directed to person charged by law with the custody of persons in lawful custody or confinement, may be served either personally or by leaving the original HABEAS CORPUS— CONTEMPT. 125 H. C. Rules. Or. XLVIII. rr. 5-8. Or. XLIX. r. 1. with a servant or officer of the person to whom the writ or order is directed at the place where the person in question is confined or detained. Other writs of Habeas Corpus must be served personally. When a writ of Habeas Corpus is directed to more persons than one, it shall be served in the»same manner as a writ or Mandamus directed to several persons. Together with the writ there shall be served a notice, directed to the person to wIkjiu the writ is addres.sed, and p(jinting out the acts to be done by liim in obedience to the writ, and the consequences of making defualt. As to manner in which a writ of mandamus, directed to several persons is served; see Order XLVII., r. 17. As to manner of effecting personal service; see Order L\'., r. 1. 5. The person to whom a writ of Habeas Corpus is directed shall, Return^ to writs at the time and place specified therein, make his return to the writ, conm-i! which shall be indorsed upon or attached to the writ, and shall set out all the causes of the detention of the person named in the writ. The return shall be filed. 6. The return mav be amended bv leave of the Court or a Justice. -A^m' "'ii'i'"i of ntiirii. As to power of the Court or Justice to amend; see H.C.P. Act, ss. 23, 24, and Order XXVII. 7. Ui)on the return of the writ the return shall be read, and a motion Procoedinus on shall then be made for the disposition of the person therein named, or for amending or quashing the return. 8. When an order to show cause has been made, the Court or Jus- ^iVJioi*, J^^," rit . tice may, on the return of the order, direct the discharge or other dis- position of the persQU in question without the i.ssue of a writ of Habeas Corpus, and any such order shall be as efi'ectual as if it had been made on the return of a writ. ORDER XLIX. Committal for Coxte.mpt of Court. 1. When a person is alleged to be guilty of contemjjt of Court, com- cont-Muiit in tiic mitted in the face of the Court, or in the hearing of the Court, the I'ourt. ' "" Court may, by verbal order, direct him to be arrested and brought before it forthwith, or the presiding Justice may issue a warrant under his hand for the arrest of the accused person. When the accused person is brought before the Court, the Court shall cause him to be informed orally of the nature of the contempt with which he is charged, and shall require him to make his defence to the charge, and shall after hearing him proceed, either forthwith or 126 H. C. Rules. CONTEMPT. Or. XLIX. rr. 2-8. In other cases. Form of notice. Interrogatories may be administered. Adjourniueiit. Punisliment. after adjournment, to determine the matter of the charge, and shall make such order for the punishment or discharge of the accused person as is just. The accused person shall be detained in custody until the charge is disposed of, unless the Court allows him to be discharged on bail. As to attachment and committal ; see Order XLI. • 2. In cases other than those in the last preceding Rule mentioned application for punishment for contempt of Court shall be made by motion, upon notice to the accused person, for an order that he be committed to prison for his contempt. As to disobedience of witness to order for attendance; see Order XXXIV., r. 3 3. The notice of motion shall specify the nature of the contempt of which the accused person is alleged to be guilty. It shall be entitled in the cause or matter, if any, with reference to which the contempt is alleged to have been committed, or, if it is not alleged to have been committed with reference to any particular cause or matter, shall be entitled •" The King against " the accused person, naming him. 4. The notice of motion shall be served personally unless the Court or Justice otherwise orders. As to manner of affecting personal service; see Order LV., r. 1. 5. When a notice of motion for the committal of a person for con- tempt has been filed, if it is made to appear to a Justice that the accused person is likely to abscond or otherwise withdraw himself from the jurisdiction of the Court, the Justice may by warrant under his hand direct that the accused person shall be arrested and detained in custody until he gives security in such sum as the Justice directs to appear in person and answer the charge and submit to the judg- ment of the Court. The warrant shall be directed to the Marshal. As to security; see Order XXVIII. 6. On the hearing of the motion the Court may order the accused person to answer on oath, within four days, interrogatories to be ex- hibited to him touching his contempt. The answer to the interrogatories shall be made by affi'davit. As to interrogatories and answers; see Order XXIX. As computation of time; see Order LIII. 7. When the accused person is ordered to answer interrogatories, the hearing of the motion shall be adjourned for a sufficient time to allow the answer to be made and filed. 8. Upon the hearing of the motion the Court may impose a fine in- stead of ordering the accused person to be committed to prison, or may impose a fine in addition to ordering his committal ; and, when it imposes a fine, may order that he be imprisoned, or further imprisoned, until the fine is paid. COMMITTAL— PATENT ANJ) TJ'.ADKS .MARKS APPEALS. 127 H. C. Rules. Or. XLIX. rr. 9-11. Or. L. rr. 1-4. 9. When the accused person is ordered to be coinnutted to prison, '.Jj'j','„^,^^, the order of committal shall specify the prison to which he Ls to be committed. 10. The Court may order the discharge of a ])erson committed to i>i-ectively or if no time is so prescribed within the same time as is prescribed for appeals from a final judgment of a Justice of the High Court. («) The regulations under the Patents Act, 190.3-1909. and the Trade Marks Act, 1905-1912, ])rescribe " twenty-one days after the date of the decision ap{)caled against or such further time as the Court on ajjiilication made within twenty-one days allows." 2. If the motion is to be made before the Full Court it shall, unless Sitting, otherwise ordered by the Court or a Justice, be set down for hearing at the first Sittings of the Court appointed to be held at the Principal Seat of the Court after the expiration of one month from the service of the notice of motion. If the motion is to be heard by a single justice in Court it shall be set down for hearing on a day appointed for that purpose. Ten days" notice shall be given by the appellant to the respondent of the day for which the appeal has been set down to be heard. 3. It shall not be necessary for a res])ondent to give notice of cross I'ross appeals, appeal, but, if a respondent intends u])on the hearing of an appeal to contend that the decision apj^ealed from should be varied, he shall, four days before the day for which the ai)peal has been set down to be heard, give notice of his intention to such of the parties as may be affected by such contention. The omission to give such notice shall not diminish the powers of the Court when hearing the aj)peal. but may, in the discretion of the Court, be ground for an adjtnniuncnt of the hearing, or for a special order as to costs. 4. The Commissioner or Registrar, as the case may be, shall forth- /,^for".a"rte^*',, with after service of the notice of motion on him forward to the Prin- rrincipai cipal Registrar of the High Court coj)ies of all such documents as may *^^'* ^^' be necessary for the hearing of the appeal. 128 H. C. Rules. KEVOCATION OF PATENTS. Or. L. r. 5. Or. LI. rr. 1-7. Papers for Justices. 5. Four days at least before the day for which the appeal has been set down to be heard, the appellant shall lodge in the Registry situated in the place where the appeal is to be heard, a copy of the documents referred to in the last preceding Rule for the Justice, or each of the Justices, by whom the appeal is to be heard. The cost of copies of unnecessary documents will not be allowed. ORDER LI. Title. Revocation of Patents. 1. A petition for revocation of a patent shall be addressed to the High Court. 2. Every petition shall contain a statement, as brief as the nature of the case will allow, of the material facts on which the petitioner relies, but not of the evidence by which they are to be proved, nor, except so far iis they are material, the contents of documents. The petition shall, when necessary, be divided into paragraphs, numbered consecutively, and each containing, as nearly as may be, a separate allegation. Dates, sums, and numbers may be expressed in figures or in words. Signature of counsel shall not be necessary, but the peti- tion shall be signed by the solicitor of the party, or by the party him- self, if he proceeds in person. Persons to be served. 3. At the foot of every petition, and of every copy thereof, a state- ment shall be made of the persons, if any, intended to be served there- with, and, if no persons intended to be served, a statement to that effect shall be made at the foot of the petition. Filing. 4. Every petition shall be filed. Notice to appear. Service. Appointment of time for hearing. 5. Upon the filing of the petition the proper officer shall, if it is intended to be served, indorse thereon a notice requiring the parties respondents to the petition to enter an appearance in the cause within the same time, and at the same place, as if the petition were a writ of summons in an action. A copy of such notice sealed with the office seal shall be indorsed upon every copy of the petition intended for service. 6. The service of a petition shall be effected by serving the party with a copy of the petition, indorsed as aforesaid, in the same manner, in which a writ of summons in an action is required to be served, ex- cept that the original petition and memorandum need not be pro- duced. As to service of writ of summons; see Order V., ri. 12-14. 7. At any time after the time limited for appearance either party may apply to a Justice to appoint a day and place for hearing the petition. LAM) TAX AND INCOME TAX APPEALS. 129 H C Rules. Or- ". r. 8. Or. LI x. rr. 1-5. 8. If the petitioner does not within six months after he is first o^smu^ai for entitled to do so apply for the appointment of a time and place for prosecution, hearing the petition, any respondent may apply to the Court or a Justice to dismiss the ])etition for want of prosecution, and. on the hearing of such application, the Court or Justice may order the peti- tion to be dismissed accordingly, or make such other order, and on such terms as the Court or Justice may seem just. ORDER LL^. Appeals in Matters Relatinc; to Land Tax and L\t o.\ie Tax. 1. — Land Tux Appeals. 1. A taxpayer who is dissatisfied with an assessment made by the ^^^^^^^'^ Commissioner of Land Tax, or in the case of an assessment of land motion, situated in one State only, by a Deputy Commissioner, may within thirty days after the s-rvice upon him by post of notice of the decision of the C mmissioner or Deputy Commi.ssioner ai)peal from such decision. The appeal shall be instituted by notice of motion, which shall specify the Court to which the appeal is to be brought, and state fully the grounds of appeal, and shall be served on the Commis'sioner or Deputy Commissioner. A copy thereof shall be filed in the proper ofl&ce of that Court. 2. The appeal shall be set down for hearing on a day appointed Hcarinc. by the Court to which it is brought for the hearing of such appeals. Ten days notice shall be given by the appellant to the respondent of the day for which the appeal has been so set down. 3. The Commissioner, or Deputy Commissioner, as the case may pocuments be, shall forthwith after service of the notice of motion on him forward """ **^""^- to the proper officer of the Court to which the appeal is brought copies of all such documents as may be necessary for the hearing of the ap- peal. 2. — Income Tax Appeals. 4. A tax])ayer w ho is dissatisfied with an assessment made by the ^^j'/j^^f^,^^' Commissioner of Taxation may within thirty days after the service motion, by post of notice of the decision of the Commissioner a]»peal from such decision. The appeal shall bo instituted l)y notice of motion, which shall specify the Court to which the appeal is to be brought, and state fully the grounds of appeal, and shall be served on the Commissioner. A copy thereof shall be filed in the proper office .of that Court. 5. When a taxpayer, in pursuance of Section 37 of the //icowe Effect of ii/-« •• j_j.^i-' i.' treating nonce Tax Assessment Act 19L5, asks the Commissioner to treat his notice of objection as of objection as an appeal, the Commissioner shall forthwith forward »" *pp^*'- the notice of objection to the Court to which the ajjpeal is to be brought, and shall give notice to the taxpayer that he has done so. Such last-mentioned notice shall have the same operation, and thereupon 9 130 H. C. Rules. Hwiring. Documpnt« for hearing. THE MAKSHAL. Or. LIa. rr. 6-9. Or. LII. rr. 1-3. the same proceedings shall be taken as if the taxpayer had on the date thereof served a notice of appeal to the same effect under the last preceding Rule. 6. The appeal shall be set down for hearing on a day appointed by the Court to which it is brought for the hearing of such ap])eals. Ten days notice shall be given by the appellant to the respondent of the day for which the appeal has been set down to be heard. 7. The Commissioner shall forthwith after service of the notice of motion on him forward to the proper officer of the Court to which the appeal is brought copies of all such documents as may be necessary for the hearing of the appeal. Papers for Justice. General practices as to special cases to apply. 3. — General. 8. Four days at least before the day for which an appeal has been set down to be heard, the appellant shall lodge in the proper office of the Court a copy of the necessary documents for the use of the Court. The cost of copies of unnecessary documents will not be allowed. 9. Except as in this Order otherwise provided, the provisions of Order XXXII. shall be applicable to Special Cases stated under the provisions of the Land Tax Assessment Act 1910-14 or of the Income Tax Assessment Act 1915. Process to be returned. ORDER LII. The Marshal and other Officers Charged with Service and Execution of Process. 1. The Marshal and every other officer charged with the execution of process shall return the process into Court if required by the party by whom it is sued out. The same fees are to be taken as by the practice of the Supreme Court of the State in which the proceeding is taken or the act is done or authorised and required to be taken by the Sheriff in respect of a like proceeding or act in a cause pending in that Court. Mode of making returns. Return of non est inventus. 2. The return shall be made by filing the original process in the Registry, with a certificate indorsed thereon or annexed thereto, and signed bv the Marshal or his deputy, or such other officer as aforesaid, and setting forth what has been done under the process. . 3. When a writ of summons or other process is delivered to the Marshal or other officer specially appointed in that behalf for service upon any person, and the Marshal or officer is unable to find the person to be served, he shall, if so required by the party by whom the process was delivered to him, return the process into Court in the same manner as in the case of process of execution, with a certificate setting forth the inability. THE MARSHAL- TIME. 131 H. C. Rules. Or. LII. rr. 4-6. Or. LIII. rr. 1-4. 4. No order shall issue for the return of any writ, or to bring in the '■^''"' " "" body of a person ordered to be attached or eonimitted ; but a notice to the Marshal by the solifitor of the party at whose suit the writ was issued, or the order for attachment or coniiuittal was obtained, or by the partv himself if he sues or appears in person, requiring the Marshal to return the writ or to make his report or to brinf.' in the body witlun a specified time, shall, if not comi)Iied with, entitle the party to apply for an order for the attachment of the Marshal. The time specified in the notice shall not be less than eight days. Any such notice may be given in vacation as well as at any other time. As to attachment of persons; see Order XLI. As to committal; see Order XLIX. As to computation of time; see Order LIII. 5. The Marshal or liis deputy shall attend all sittings of a Full ^il'^^hlfiu'c^'urt. Court, and all sittings of the Court for the trial of causes, and of any Justice of the Court when sitting in Court on any occasion when he is required by the Justice or Court to do so. 6. Whenever, by reason of distance or any other sufficient cause. Or hu officers, the Marshal or his deputy cannot conveniently execute any instru- ment in person, he shall employ some fit person as his ofl&cer to execute it. ORDER LIII. Time. 1. When any limited time less than six days from or after any date |,^;^i';,;'.°and or event is appointed or allowed for doing any act or taking any pro- court holidays, ceeding, Sundays and Court holidays shall not be reckoned in the com- putation of the time. As to Court holidays; see Order LVL, r. 4. 2. Wlien the time for doing any act or taking any proceeding ex- t^''^;^/^^'^;"" pires on a Sunday or Court holiday, and by reason thereof the act or proceeding cannot be done or taken on that day, the act or jjroceeding shall, so far as regards the time of doing or taking it, be held to be duly done or taken if done or taken on the next day which is not a Sunday or Court holiday. As to Court holidays; spe Order LVI., r. 4. 3. Pleadings shall not be delivered or amended in the vacations f;',;!/^';!;;;^^^"' unless directed by the Court or a Justice. vacation. As to delivery of pleadings; see Order XVII., el seq. As to vacations; see order LVL, r. 3. 4. The time of the vacations shall not be reckoned m the compu- ^;;?SnI^\n'' tation of the times aj^iiointed or allowed by these Rules for filing, tm.o jor ^^ amending, or delivering any pleading, unless so directed by the Court „i ,, loadings.' or a Justice. Tlic time for vacations is reckoned in calculating the time within which notice of motion for new trial must be served ; see Part II., see. I, r. 22. As to vacations; see Order LVL, r. 3. 132 H. C. Rules. TIME. Or. LIII. rr. 5-8. Time for giving security for costs when not to bo reckoned. I'owir of Court or .J ustice to enlarge or abridge time. 5. The day on which an order for security for costs is served, and the time thenceforward until and including the day on which the security is given, shall not be reckoned in the computation of the time allowed for pleading, answering interrogatories, or taking any other proceeding in the cause. As to security for costs; see Order XXVIII., r. 9. 6. The Court or a Justice may enlarge or abridge the time for doing any act or taking any proceeding allowed or limited by these Rules, or allowed or limited for the like purpose by any order of the Court or a Justice, whether so allowed by way of enlargement or othwerwise, upon such terms, if any, as the justice of the case requires ; and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time originally allowed or limited, (a) (a) Per Griffitfis, C.J. : Rule 6 of Order LIII. does not apply to an appeal from the Supreme Court of the State, and the High Court has no jurisdiction to extend the time for giving notice of such an appeal : Lever Bro.i. Ltd. v. G. Mowling (udcrotl to s,>t-oiiof 1 1 1 ■ r 1 1 1 ' A. d;iniaRO> ana of be paid bv one party to another, whether tor debt, damages, or costs, rosts in same and in the same cause or matter the party t(» whom the sum is to be ^ause or matter, paid is ordered to pay any sum, whether for debt, damages, or costs. 134 H. C. Rules. COSTS. Or. LIV. rr. 8-14. Set-off in different causes, or matters. Costs of incidental applications. Costs of motion not disjiosed of. Costs reserved. Costs when further proceedings become unnecessary. Costs of unnecessarily expensive proceedings. Amount of costs. to the party by whom the first-mentioned sum is to be paid, one of the sums shall be set-off against the other without any order for that purpose, and the balance, if any, shall be payable by the party by whom the larger sum is ordered to be paid, and to the other party. As to the costs of different issues following the event; sec r. 2, supra. As to set off in different causes of matter; see r. 8, infra. 8. Money recovered by one party against another party in any cause or matter shall not"^be set-off against money recovered by the latter party against the former in another cause or matter, except subject to the" liens of their respective solicitors upon the sum so recovered, but may be set-off subject to such liens. 9. Unless the Court or a Justice otherwise orders, the costs of a motion or application in a cause shall be deemed to be part of the costs of the cause of the party in whose favour the motion or applicatioii is determined, unless the motion or application is unopposed, in which case the costs of both parties shall be deemed to be part of their costs of the cause, unless the Court or a Justice other\\ ise orders. 10. When a motion or application or other proceeding is ordered to stand over to the trial, and no order is made at the trial as to the costs of the motion, application, or proceeding, the costs of both par- ties of such motion, application, or proceeding shall be deemed to be part of their costs of the cause. As to costs reserved ; see r. 11, infra. 11. When the costs of any motion or application or other proceed- ing in a cause or matter are reserved by the Court or Justice, no costs of such motion, application, or proceeding shall be allowed to either party without the order of the Court or Justice. 12. When for any reason the further prosecution of any cause or matter becomes unnecessary except for the purpose of determining by whom the costs of the cause or matter should be paid, any party rnay apply to the Court or a Justice to determine that question, and thereupon the Court or Justice may make such order as is just. 13. When a party takes proceedings of an unnecessarily expensive character, the Court may order the costs incurred by the proceedings so far as they are in excess of the costs which would have been in- curred by proceedings of a less expensive character, to be borne and paid by the party by whom the proceedings are taken, 'although he is otherwise entitled to the costs of the cause or matter, (a) (a) Preparing typewritten or printed copies of documents or of evidence for an appeal is not taking a proceeding within the meaning of Order LIV., r. 13 (Order XLIV., r. 13, 1903) : Peacock v. Osborne (No. 2) (13 A.L.R. 254 [1907]). 14. The fees payable to barristers and solicitors in respect of busi- ness transacted by them in the High Court or the offices thereof shall, unless otherwise ordered, be taxed, allowed, and certified by the Regis- trar or a Deputy Registrar, or some other officer duly appointed for the COSTS. H. C. Rules. purpose, and shall he allowed in accordance, as nearly as may be, with the scale of costs a|)|)lical)lo. under the practice of the Supreme Court <)i the State in which the business is transacted, to busine.ss of an analogous nature tran.sacted in that Supreme Court or the offices thereof, (a) to (/). (n) UndiT .Section 148 of the Victorian Jii.sticcs Aft. 1890, the amount of costs which can be allowed in the Supreme Court upon an order to review a dei-ision of a Court of Petty Sessions, is limited to £20. Held by the Hifrh Court that this rule does not make that section apj)licable to ajipeals to the Hij.'h Court by th<- way of orders to review from Courts of Petty Sessions exercisinj; Federal jurisdiction: Lyon.i V. Smart (6 C.L.R. 285 [1908] ; 14 A.L.R. (519 [1908]). (h) Where the resjiondent had been ordered to pay a part of the petitioner's taxed costs, the fee paid to the jjctitioner's counsel in respect of the whole ix-tition may, on ta.xation be allowed in full, if the amount is a fair and reasonable fee in resj)ect of the matter on which the petitioner succeeds : Chanter v. Blackwood c stuck up in the Registry, in addition to being filed there : Auslraliii)} Tern pen nice, and General Mutual Life Assurance Society, Ltd. v. Holland (20 C.L.R. 145 [1915]). 7. When a party after having sued or appeared in person has given ^^,"T!" "'J'"* notice in writing to the opposite jiarty or his solicitor, through a party fonuerjy solicitor, that that solicitor is authorized to act in the cause or matter p['^'*n.'"''"'" on his behalf, all documents which ought to be delivered to or served upon the party on whose behalf the notice is given shall thereafter be delivered to or served upon that solicitor at the address given in the notice. 8. No instrument, except a warrant to arrest property in an action ^7e,fect'cd*on in rem, shall be served on a Sundav. Good Fridav, or Christmas Dav. Sunday, lidod Friday, or Christmas Day. 9. Affidavits of service shall state the time when, the place where, Affldavittof the person by whom, and the manner in which, the service was efTected. *"^"'''- As to affidavits generally; see Order XXXV. As to affidavits of service of subpoena; see Order XXXIV.. r. 16. ORDER LVI. Sittings and Vacation's. 1. Sittings of a Full Court shall be held in each year on days to be fuU Court, appointed for that year by Rule of Court, and on such other days as are specially appointed by Rule of Court. Any act or proceeding which by any Act or practice is required to be done or taken in or with reference to term.s shall be done or taken in or with reference to the sittings of a Full Court annually appointed as aforesaid. 2. Sittings of the Court before single Justices shall, if there is any sittinKs hofore ,. '^ 1,1,111 1 11 singlcJJustices. business to be transacted, be held at such places and on such days as are appointed by Rule of Court, and on such other days as a Justice thinks fit to sit in Court. 138 H. C. Rules. VACATIONS- -GENERAL. Or. LVI. rr. 3-5. Or. LVII. rr. 1-2. Long vacations. 3^ There shall be two vacations in each year, the winter vacation of four weeks, beginning on a day in June to be annually appointed by Rules of Court, and the summer vacation of eight weeks, beginning on a day in December to be annually appointed in like manner. Pleadings must not be delivered or amended in vacation ; see Order LIIL, r. 3. Vacation is not to be reckoned in time for filing, amending, or delivery of pleadings ; see Order LIIL, r. 4. Holidays. 4^ The following davs shall be observed as holidays of the Court, that is to say:— New Year's Day, Good Friday, Easter Eve, Easter Monday, Easter Tuesday, Christmas Day, the three days following Christmas Day, the Birthday of the Sovereign, the Birthday of the Heir Apparent, and such other days as are appointed by Rules of Court. Office hours. 5^ ^-^^ several offices of the Court shall be open on every day in the year except Sundays and Court holidays, and shall be open from nine o'clock in the forenoon until four o clock in the afternoon, except in the vacations, when they shall be open from nine o'clock in the forenoon until one o'clock in the afternoon, and except on Saturdays when they shall close at t^velve o'clock noon. Use of Great Seal. ORDER LVII. General Provision."*. 1. Seals: Process: Office Copies. 1. The Great Seal of the Court shall be affixed to all Commissions issued by authority of the Court or a Justice, whether under the authority of an Act or of Rules of Court, to all exemplifications of pro- ceedings in the Court, to all writs of Certioriari, Mandamus, Pro- hibition, and Habeas Corpus, and writs of inquiry, and to all docu- ments issued from the Court for use beyond the Commonwealth, not being writs or other documents for service on a party to a cause, and to such other documents as the Court or a Justice in any case directs. As to the seal of the High Court and duplicate thereof; see H.C.P. Act, s. 3. As to the use of seals; see H.C.P. Act, s. 4. As to office seals; see r. 2, infra. Office seal. 2. At every Registry there shall be kept a Seal, called the Office Seal, which shall bear "the words " Hii-h Court of Australia," and also the word •" Registry," prefixed by the word " Principal " in the case of the Principal Registry, and by the name of the place at which the Registry is situated in the case of a District Registry. The Office Seal shall be affixed to all writs, process, judgments, and orders, and to all other documents which are authorized to be sealed, except as provided by the last preceding Rule. KKALS.— IRREGULARITIES. 139 H. C. Rules. Or. LVII. rr. 3-9. 3. Any person desiring to sue out any writ, process, or coinniission ^'*''"'* """^^ authorized by an Act or by Rules of Court may prepare it, and present it to a Registrar for issue, and, if it aj)pears that the document is in proper form, and that the person i)resenting it is entitled to sue it out, the Registrar or his clerk shall sign it and .seal it with the proper seal, and it shall thereupon be deemed to be i.ssued. As to the use of k-,i\; see H.C.l*. Act, s. 4. 4. Any person entitled to have a co]>y of any record of the Court, ^"'*'*^ ''"'"''• or of any document filed in a Registry, may apply to the Registrar for an office copy thereof, and the Regi.strar shall thereupon cause a copy of the record or document to be made and examined, and to be marked with the words " Office Copy." and sealed with the Office Seal. Every such copy shall be deemed to be a certified copy within the meaning of any law relutiiig to certified copies. As to fee payable for office eopies; see Scale of Fees, sub-title " Copies." 5. The term Registrar in these Rules includes a District Registrar, )|™^;'' Deputv Registrar, or other officer discharging the duties of the Registrar, or of a District Registrar or Deputy Registrar. 2. General. 6. Non-compliance with any Rule of Court, or with any rule of ^'XRuufnor practice for the time being in force, shall not render any proceedings t., nmier ^ void unless the Court or a Justice so directs ; but the proceedings ('^a^"*'""* may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court or Justice thinks fit. No proceedings are invalidated by any foinial ikfict or irregularity ; see H.C.P. Act, s. 24. As to amendment; see H.C.P. Act, ss. 23, 24. 7 An ai>i>li(ation to set aside anv ])roceeding for irrcgularitv shall Application to , ■ • • 1 "• , 1 • 1 1 i' ' • c i.1 set asidi- lor not be allowed unless it is made within a reasonalile time, or it the irr,.(tuiarit.v. party applying lias taken any fresh step after knowledge of the irregu- »ii-naiio«,-d. larity. 8. When a i)arty desires to take any step in a cause or matter, |,';;;'j^;^,",°*r, and the manner or form of procedure is not i)rescribed by Rules of Justice may civ* Court or by the ])ractice of the Court the party may api)ly to a Justice ' "^•<""o"^- for directions, and any step taken in accordance with the directions given by the Justice shall be deemed to be regular and sufficient. ^-., f/~< .• -liii u Solicitor to net 9. Whenever by Rules of Court any act is recpiired to be done by, fori>arty. or to, or with reference to a party, then in the case of a party who sues or a])pears by solicitor, the act shall be done by, or to, or with reference to, his solicitor, unless it is expressly provided that it shall be done by, or to, or with reference to, the party in person. 140 H. C. Rules. DOCUMENTS— APPEALS Or. LVII. rr. 10-11. Part II. sec. 1. Forms. 10. The following Regulations shall be observed with respect to printed documents : — 1. The document shall be printed on cream wove white foolscap folio paper, in pica type, leaded, with an inner margin about three-quarters of an inch wide, and an outer margin about two inches and a half wide, and every tenth line shall be numbered in the margin. 2. The document shall be printed by direction of the party on whose behalf it is to be filed or lodged. 3. Unless otherwise ordered by the Court or a Justice the expense of printing documents required to be printed shall be allowed as costs of the party on whose behalf they are required to be filed or lodged. 4. The party printing shall on demand in writing furnish to any other party any number of printed copies not exceeding ten upon payment therefor at the rate of 2d. per folio for one copy and Id. per folio for every other copy. 11. The Forms in the Appendix to these Rules shall be used for the purposes to which they are respectively applicable, with such varia- tions as circumstances require. PART IL— APPELLATE JURISDICTION. APPEAL RULES. SECTION I. Appeals prom Justices of the High Court and New Trials. Appcals^to be bv way of rehearing. Place for hearing appeals Mode of instituting appeals. 1. Appeals. 1. Appeals to a Full Court from judgments of Justices of the High Court, whether in Court or Chambers, shall be by way of rehearing. As to power of Full Court to receive further evidence; see r. 10 infra. As to expediting hearing; see r. 28 iyifra. As to inspection by a Justice of property or thing when cause or matter is on appeal; see Order XLIIL, r. 2. 2. Unless otherwise directed by the Court or a Justice, appeals shall be heard at the seat of Government of the State in a Registry whereof the cause is pending. The Court or a Justice may direct that any appeal shall be heard at the seat of Government of some other State. As to sittings of the Full Court; see Order LVI., r. 1. 3. Appeals shall be instituted by notice of appeal, which shall be served and filed as hereinafter provided ; and no petition, case, or other formal proceeding other than the notice of appeal shall be APPEALS. Ill H. C. Rules. Pari II. sec. I. necessary. The aiJ[)ellant may by the notice of appeal appeal from the whole or any part of the judgment appealed from, and the notice of appeal, shall state whether the whole or part only of the judgment is complained of, and in the latter case shall specify the part com- plained of. The notice of appeal shall state shortly the grounds on which the appellant intends to rely. As to power of High Court to make rules prescribing the times and manner of instituting apjK'als; sec H.C.P. Act, s. 37. As to security not being required except under order of the High Court; see H.C.P. Act, s. 35. As to stay of proceedings pending appeal; see H.C.P. Act, s. 38. As to apj)eal by personal representative on the death of a party to a judgment see H.C.P. Act, s.\39. 4. The notice of appeal shall be served upon all parties directly To whom notue affected by the appeal, and it shall not be necessary to serve parties ** k'^"^"- not so affected ; but the Full Court may direct notice of appeal to be served on all or any parties to the cause or matter, or upon any person not a i)arty, and in the meantime may ])ostpone or adjourn the hearing of the a])peal u[)on such terms as are just, and may give such judgment and make such order as might have been given or made if the persons served with such notice had been originally parties. The notice of appeal may be amended at any time as the Full Court thinks fit. As to amendment generally; see H.C.P. Act, ss. 23, 24 ; and Order XXVII. As to service; see Order LV. 5. The notice of appeal must be served within the times (a), (b), Time, (c) following, respectively, that is to say : — (1) If the appeal is from a final judgment, within twenty-one days from the date of the judgment ; (2) In any other case within ten days (d) from the date of the judgment or order ; or, (3) In either case within such extended times as the Court or a Justice allow^s. The said periods shall be reckoned from the date when the judg- ment or order was pronounced, or, in the case of the refusal of an application, from the date of the refusal. The times of the vacations shall be reckoned in the computations of the said periods. In this Kule the term " final judgment " includes any judgment, decree, order, or sentence, by which the rights of the parties are finally concluded wdth respect to the matters in question in the cause or matter, or any of them, not being a decision u])on a mere matter of procedure, (e) {(i) Order LIII., r. (i (Rules of the High Court. 1903. Part I., Order XLV.. r. (i) does not pply to an appeal from the iSupreme Court of a State and the High Court has no jurisdiction to extend the time for givinsz notice of such an appeal : Lever Bro.'s., Ud. v. Molding d- Sun (5 C.L.R. 510 [1908]). 142 H. C. Rules. HIGH COURT APPEALS. Part II sec. I. Notice to Registrar. Appeals from refusal of ex parte applications. (h) A notice of appeal was during vacation, when tiie offices of the High Court are open til! one o'clock, handed to an Officer of the Court at three o'clock in the afternoon on the last day of filing. Held that the copy of the appeal was not filed within the prescribed time : Ryan v. RounneveU (10 C.L.R. 176 [1910]). (r) Through inadvertence on the part of the defendant's solicitor, notice of appeal to the High Court from the judgment of the Supreme Court of a State, an appeal from which, to the High Court lay as of right, was not given within the pre- scribed time. Held, that in the specialcircumstances of th> case special leave to appeal should be granted : Russell v. Russell (24 C.L.R. 19 [1917]). (d) An order made by a Justice of the High Court dismissing a suit as frivolous and vexatious is not a final judgment within the meaning of r. 5 of the Appeal Rules Section 1, and, therefore, notice of appeal from such order must be filed within ten days from the date of the order, as required by rule 5, sub-section 2 : Roberts v. Roberti- db Moffatt (7 C.L.R. 566 [1908]). (e) Roberts v. Roberts e varied, he shall within the time prescribed by the next following Rule, or such time as is allowed by special order of the Court or a Justice in any case, give notice of his intention to such of the parties as may be affected by such contention. The omission to give such notice shall not diminish the powers of the Court when hearing the ap])eal, but may, in the discretion of the Court, be ground for an adjournment of the appeal or for a special order as to costs. A copy shall be filed in the Registry. 144 H. C. Rules. POWER ON APPEAL. Part II. sec. I. Time. 13. Subject to any special order which is made in any case, notice by a respondent under the last preceding Rule shall be given ten clear days before the day for which the notice of appeal is given. As to computation of time ; see Order LIII. Transmission of Documents. 14. When the appeal is directed to be heard at a place other than that in which the Registry in which the cause is pending is situated the Registrar of the last-mentioned Registry shall transmit to the Registrar of the Registry situated at the place at which the appeal is to be heard all such documents as may be necessary for the hearing of the appeal. After the appeal has been disposed of, they shall be returned to the Registry in which the cause is pending. Papers'for Justices. 15. Four days at least before the commencement of the sitting for which the notice of appeal is given the appellant shall, unless otherwise ordered, lodge in the Registry situated in the place where the appeal is to be heard five printed copies of the Justice's notes taken at the hearing, including the notes of evidence, if any, and also a copy of the pleadings, if any, and of such other documents as may be necessary for the purposes of the appeal. The cost of copies of unnecessary documents will not be allowed. As to regard being had to Justice's notes where question arises as to the ruling or directions of the Justice to a Jury; see r. 25, infra. As to reasons of Justice's decision appealed from being included among paper.-'; see r. 27, infra. Printing may be dispensed witli. 16. The Court or a Justice may in any case upon such terms as it or he thinks fit dispense with the printing of such documents, or of any portion thereof, and may direct a greater or less number of printed copies to be lodged, and may also direct printed copies to be served upon any person not a party to the case or matter. Interlocutory orders not appealed from not to har relief 17. An interlocutory order or rule from which there has been no appeal shall not operate to prevent the Court, upon hearing an appeal, from giving such decision upon the appeal as is just.. Rule nisi on appeal. 18. When on an appeal from the refusal of an ex parfe application the Court is of opinion that a rule nisi or order nisi should have been granted, the Court may grant a rule or order nisi returnable either before a Full Court or before a Court constituted by a single Justice. Applications for new trials of causes heard before"a Justice. 2. New Trials. 19. Except as by Rules of Court is otherwise specially provided, every application for a new trial or to set aside a verdict, finding, or judgment, in a cause or matter where there has been a trial by a Justice of the High Court without a jury, shall be made by appeal to a Full Court. As to application for new trial of cases tried by jury; see r. 20, infra. NEW TRIAL— GENEKAL I'K()\ LSlUNS. 145 H. C. Rules. Part II. sec. I. 20. Every application for a new trial or to set aside a verdict, ^p^"^*,^"^ "' finding, or iudgnient. in a cause or matter in which a verdict has been cas*^ tru^ by , 11 ■ 1 11 I 1 . II II /. i I i- i- jun- to be by found by a jury, shall be made to a iMill ( ourt by motion upon notice, notice of motion. No rule nisi or order to show cause or other formal proceeding other than the notice of motion shall be made or taken. The notice shall state the grounds of the application, and whether all or part only of the verdict, finding, or judgment, is complained of. 21. The notice may bo amended at any time by leave of the Court ^^fp"''™*'*' °' or a Justice, upon such terms as the Court or Justice thinks just. As to anu'ndnunt K^'nt-raliy ; sec H.C.P. A't. ss. 2.'J, 24, and Order XX\ II 22. The notice of motion must be served upon the jiarty in whose ^'me. favour the judgment was given within twenty-one days from the conclusion of tlie trial or the date of the pronouncing of the judgment upon further consideration, as the case may be ; or within such ex- tended time as the Court or a Justice allows. The time of the vacations shall be reckoned in the computation of the period aforesaid. 23. Except as aforesaid, all the provisions of the foregoing Rules ocnerai practice, of this section relating to ajipeals shall api)ly to applications for new trials or to set aside verdicts, findings, or judgments, in causes or matters in which a verdict has been found by a jury. As to trial by jury; see H.C. P. Act, s. 12, e' spq. 24. Upon the hearing of an application for a new trial or to set Power of Court, aside the verdict or finding of a jury, the Court may, if satisfied that it has before it all the materials necessary for finally determining the questions in dispute, or any of them, or for awarding any relief sought, give judgment accordingly, and may for that purj)0.se draw any in- ference of fact not inconsistent with the findings of the jury, if any ; or mav, if it is of o])inion that it has not sufficient materials before it to enable it to give judgment, direct the motion to stand over for further consideration, and may direct such i.ssues or questions to be tried or determined and such accounts and inquiries to be taken and made as it thinks tit. As to power of Hi<;li Court to impose eonflition.s or direct admissions on a new trial, and to prant it fjenerally or on some particular points only, and to order tes- timony of a witness to be read on a new trial; .see H.C.I*. Act, s. 14. As to powers of Court on appeal; see r. 11, supni. I 3. General Piovisio)iti. 25. If ui)on the hearing of an appeal or ai)plication for a new trial Xot.-s of ruling ■ 1 1- , !■ 1- r • J.- ■ J. ^i or direction. or to set aside a verdict or hnding of a jury, a question arises as to the ruling or direction of the Justice to a jury, the Court shall have regard to the Justice's notes, and to such other evidence or materials as the Court deems expedient. 146 GENERAL PROVISIONS- APPEALS IN FEDERAL CASES. Part II. sees. 1-2. Api)cal or motion for a new trial not to bi' stay of proceedings. 26. An appeal or motion for a new trial or to set aside a verdict, finding, or judgment, shall not operate as a stay of proceedings unless the Court or a Justice so orders. Any such order may he made as to the whole or any part of the proceedings in the cause or matter, and may be made upon such terms as the Court or Justice granting the stay thinks fit. No intermediate act or proceeding shall be invalidated except so far as the Full Court directs. As to stay of proceedings on institution of an aji])i'al; sec H.C'.P. Act, s. .'5S, and Order XLIV., r. 1. Reasons of Justices. 27. When the reasons for the decision of the Justice whose decision is appealed from have been given in writing, or are recorded in writing, a copy thereof shall be included with the documents transmitted to the Registry situated at the place at which the appeal is to be heard and shall be left at the Justices' Chambers. Hearing may be expedited. 28. The hearing of an appeal, or of a motion for a new trial or to set aside a verdict or finding of a jury, may be expedited by order of the Court or a Jiistice. Provisions of section I. to apply with certain modifications. SECTION II. Appeals from Decisions of Judges of the Supreme Courts of THE States in Causes or Matters Pending in the High Court. 1. All the provisions of section I. of these Rules shall apply to ap- peals to the High Court from judgments of Judges of the Supreme Courts of the States sitting as Judges of first instance in the exercise of federal jurisdiction in causes or matters pending in the High Court, and to applications for new trials, or to set aside a verdict, finding, or judgment in any such cause or matter, subject nevertheless to the modifications set forth in the two (a) following Rules. (a) As oriainally enacted. Section 2 of the Appeal Rules contained three rules. Sin-e then the'^present Rule 2 has been inserted and new rules, 3 and 4, have been substituted for those originally standing as 2 and 3 respectively. Place for hearing appeals 2. Unless otherwise directed by the Court or a Justice such appeals and applications shall be heard at th^ seat of Government of the State. The Court or a Justice may direct that any such appeal or applica- tion shall be heard at the seat of Government of some other State. Notice of appeal to be filed in Supreme Court and High Court. 3. A copy of the notice of appeal, or notice of motion for a new trial, or to set aside the verdict, finding, or judgment, shall be filed in the Supreme Court, and a copy shall also be filed in the Registry of the High Court situated at the seat of Government of the State ; and the appeal shall not be deemed to be duly instituted until these copies have been filed. APFKAL.S IN STATE LAW CASKS. 147 H. C. Rules. Part II. sees. 2-3. 4. The proper officer of the Supreme Court shall deliver to the fr^n;^''4to"if„{ Kegistrar of the last-mentioned Registry of the High Court such documents, documents as are necessary for the hearing of the a|)peal ; and that Registrar, if the a])peal is not to be heard in the State, shall transmit them to the Registrar of the Registry of the High Court situated at the place where the appeal is to be heard. After the ai)peal or motion has been disposed of, the documents shall be returned to the pro))er officer of the Supreme Court, by or through the Registrar of the liegistry in the State as the case may be. SECTION 111. Appeals from Supreme Courts of the St.\tes. 1. Appeals to the High Court from judgments of the Supreme f^^fjjj,"' Court of any State, or any other Court of any State from which at appeals, the establishment of the Commonwealth an appeal lay to the Queen in Council, shall be instituted by notice of appeal (a), which shall be served and filed as hereinafter provided, and by giving the jjrescribed security ; and no j)etition, case, or other formal proceeding other than the notice of appeal and security shall be necessary. The a})pellant may, by the notice of appeal, appeal from the whole or any jiart of the judgment appealed from, and the notice of appeal shall state whether the whole or part only of the judgment is complained of, and in the latter case shall specify the part complained of. The notice of appeal shall state shortly the grounds on which the appellant intends to rely. As to power to grant a new trial; see H.C.P. Act, s. 14. As to security; see H.C.P. Act, s. 35, r. 12, infra. As to stay of proceedings under the judgment appealed from, see H.C.P. Act s. 38; r. 22, infra. (n) Held by tlie High Court that an apjical by a husband to the High Court could not be entertained in the absence of service, personal or substituted, of the notice of ai)j)eal upon the wife : Machinv. Machin{2\ C.L.R. 127 [1916]). 2. Unless otherwise directed by the Court or a Justice, apijeals pia*"? for . 11 1 1 1 r rt r > ^l t r\ hearing appeals. shall be heard at the seat of Government of the State from a Court whereof the appeal is brought. The Court or a Justice may direct that any appeal shall be heard at the seat of Government of some other State. 3. Leave or special leave to appeal to the High Court from any such Leave to appeal, judgment {b) where leave or special leave is required may be given by the High Court upon motion ex parte (c),and on such conditions, if any, as the Court thinks fit. On the hearing of the motion, such evidence shall be given on affidavit as the High Court requires (r/). An order for leave or special leave to appeal may be rescinded on the motion of any respondent. As to affidavits generally; see Order XXX\'. (d) Where an appeal brought as of right was at the time it came on for hearing struck out on the objection of the respondent that it was incompetent for the reason that the judL'iiunt appealed from was ijcjow the ai)|>calai)le amount, the Court allowed tlie respondent such costs only as would have been incurred on a motion to strike out the appeal : Porta v. Haiiser (27 C.L.H. 192 [1919]). 148 H. C. Rules. APPEALS IN STATE LAW CASES. Part II. sec. 3. To whom notice to be given. Title of proceedings for leave to appeal. (6) Held by the High Court that in applications for special leave to appeal, counsel for the respondent may be allowed to appear and opjjose : Collis v. Smith (9 C.L.R. 490 [1909]). (c) Held by the High Court that where an interlocutory judgment is regular, an ajiplication to set it aside should be supported by an affidavit of merits, and, although leave to appeal to the High Court from an interlocutory judgment of the Supreme Court of a State is granted almost as a matter of course, it will bo refused where the proposed appeal is, on the material presented, hopeless: Rubin v. Eacott (15 C.L.R. 38() [1912]). 4. The notice of appeal shall be served upon all parties directly affected by the appeal (a), and it shall not be necessary to serve parties not so affected ; but the High Court may direct notice of the appeal to be served on all or any parties to the cause or matter, or upon any person not a party, and in the meantime may postpone or adjourn the hearing of the appeal upon such terms as are just, and may give such judgment and make such order as might have been given or made if the persons served with such notice had been originally parties. Any notice of appeal may be amended at any time as the High Court thinks fit. As to service; see Order LV. As to amendment; see H.C.P. Act, ss. 23, 24. (a) See note to r. 1, supra. Machin v. Machin (21 C.L.R. 127 [191fi]). 5. The notice of appeal must be served within the times following (a), respectively, that is to say : — (1) If the appeal is of right, within twenty-one days from the date of the judgment appealed from ; (2) If the appeal is by leave or special leave of the High Court within twenty-one days from the date of the order of leave ; (3) In either case, if the appeal is from a judgment given or made before the commencement of the Judiciary Act 1903, within such extended time as the Court or a Justice allows. The said respective periods shall be reckoned in the first case from the date when the judgment was pronounced, and in the s cond case, from the date when the order giving leave to appeal was made. (n) For unsuccessful applications to extend time for filing notice of appeal, .see Lever Bro%, Ltd. v. G. Mowling eZ/ (10 C.L.R. 176 [1910]) ; Delph Singh v. Karhowsky (18C.L.R. 197 [1914]). In Ryan w Rounsevell a notice of apjjcal was, during vacation, w hen the offices of the Hiszh Court are open till one o'clock, handed to an officer of the Court at three o'clock in the afternoon on the last day of tiling. 6. Affidavits intended to be used upon motions for leave or special leave to appeal, and orders giving leave or special leave to appeal, shall be entitled " In the High Court of Australia," and in the matter of the cause, which shall be described as pending in the Court from which the appeal i? proposed to be brought. APPEALS IX STATR LAW CASES. 149 H. C. Rules. Part 11. sec. 3. 7. Notice of appeal and all subsequent proceedings on a i)i)eals ''•'•' "'^pp**^- shall be entitled " In the Hi<:h Court of Australia."' " On apj)eal from " the Court from which the appeal is broufiht. naininp it ; and sliall also be entitled as between the ])arty appellant and the party respondent. 8. The appellant shall, within the time prescribed for .serving the j^^l^^^" notice of api)eal. file a copy of the notice of appeal in the Court from which the ap|)eal is brought and also in the Registry of the High Court at the seat of (Jovernment of the State in which the decision appealed from was given. The fcf ])ayahlo on tiliiifi a copy of notice or motion in«titiitin{ran apjieal is ."> '-_ 9. When the appeal is not brought by leave or special leave of the ;^a','up.'o/'* High Court, the appellant shall file witli the notice of appeal an affi- iy,;J^';";^^! '« ^^ davit setting out sufficient facts to show that the judgment is one affidavit! from which an appeal lies to the High Court without either leave or special leave {a) and shall file a copy of the affidavit with the copy of the notice of appeal in the Registry of the High Court. {(i) Held by the Hifih Court that in an affidavit as to the appealable nature of a jiidfiment filed under this rule, the statement that the judjiment involves in- direitly a question res])epeal where leave had not been obt lined. The Kull Court of that State di.smissed an ai)i>eal from his decision : Mihif v. Jnmes {12 W.A. L.R. 1 1 1 [1910]). On appeal to the High Court the appeal in this case was allowed, the High Court holding that on tlu^ facts of the ease, appeal lay as of right : Milne v. James (V.i C.L.R. l(w [191(1]). 12. Within three months after the service of notice of appeal. f^lfoilvvc^L •or such otlier time as is prescribed by an order giving leave to appeal (rt). the ai)])ellant shall give the prescribed .security (h). (c), for the costs of the appeal, and shall give notice thereof to the respondent (d). 150 APPEALS IN STATE LAW CASES. H. C. Rules. Part IL sec. 3. Such security shall be given in the Court from which the appeal is brought. If the security is not given within the prescribed time, the appeal shall be deemed to be abandoned (e). As soon as it is given, the appeal shall be deemed to be duly instituted. As to security; sec H.C.P. Act, s. 35. (a) Where security was lodged with an officer of the Court after hours on the last day for lodging security, the High Court overruled an objection that the security had not been lodged within the prescribed time : Maine -v . Lyons [\b C.L.R."(H71 [1913] ; 19 A.L.R. 99 [1913]). (h) The fact that a person who had a right to apjieal from a decision of the Supreme Court of a State to the High Cf-urt and had given notice of such appeal was unable, through poverty to provide the funds necessary for an application to re- duce or dispense with security for the costs of the appeal until it was practically too late to make such application before the time for giving such security had elapFcd is not, by itself, a special circumstance which will justify the granting of special leave to appeal : Westcott v. Westcctt (25 C.L.R. 495 [1918]). (c) On an application to reduce the amount of or dispense with the security for costs of an appeal to the High Court from the Supreme Court of a State, where a similar ap])lication has alreadv been refused, the matter is " res judicata "^ Fisk V. Anderson (19 C.L.R. 518 [1915]). ((/) Where security for costs of an appeal have been duly lodged within the time prescribed by this rule, the appeal will not be struck out merely because the ap- pellant has not given the respondent notice of the lodging of the security until after the expirv of the time: Hedberg v. Woodhall (15 C.L.R. 531 [1913]; 19 A.L.R. 95 [1913]). (e) An appellant omitted to lodge security within the prescribed time, and after the time had expired, applied to the High Court for extension of time and re- duction of the security. The Court expressed a doubt whether they had power to extend the time owing to the appeal having lapsed, but, having regard to the special circumstances of the ca.se, granted special leave to appeal and reduced the security conditionally upon the appellant setting down the appeal for the current sittings : Miller v. Major (4 C.L.R. 219 [1906]). Held by Griffith, C.J., Barton and Gavan Duffy, J.J. (Isaacs and Rick, J.T., dissenting), that there is no jurisdiction in the High Court or a Justice thereof to extend the time prescribed by rule 12 of Section 3 of Part II. for giving security for the costs of an ajipeal from the Supreme Court of a State : Delph Singh v. Karbowsky (18 C.L.R. 197 [1914]). Form of ;13_ Security may be given either by payment of money into Court or by bond with sureties to the satisfaction of the Prothonotary, Master, Registrar, or other ]>roper officer of the Supreme Court. Transmission of 14^ If the security is given within the prescribed time, the proper officer of the Court from which the ajipeal is brought shall forthwith transmit to the Registrar of the Registry of the High Court at the seat of Government of the State a certified copy of all such documents as are required for the hearing of the appeal (a), and, if the appeal is directed to be heard elsewhere than in the State, the Registrar shall transmit them to the Registrar of the Registry situated in the place where the ai)i:)eal is to be heard. A statement of the reasons of the Court for the decision shall, if practicable, be included in the documents so transmitted. After the appeal has been disposed of they shall, if they have been received from another Registry, be returned to the Registry from' which they were so received. (a) As to what documents are required for the hearing of an appeal : Wilkie V. Wilkie (2 C.L.R. 383 [1905] ; 11 A.L.R. (C.N.) 21 [1905]). APPEALS IX STATK LAW CASES. L5I H. C. Rules. Part "• sec 3. 15. The appeal shall be set down for hearing,' at a sitting of the f^r^apfJir'" High Court a[)pointed for hearing apjteals at the jjlace at whirli it luarinK. is to be heard. It shall be set down for the first such sitting appointed to be held after the exi)iration of two months from the due institution of the ajjpeal (a), unless the respondent consents to its being heard at an earlier sitting. If the appellant does not set down the ap])eal for hearing at that sitting, and. three weeks at least before the day appointed for hcjlding the sitting, give notice to the respondent that he has done so. unless the respondent consents to take shorter notice, the respondent, or any respondent, if more than one, may ap])ly to a Full Court, at anv ])lace at which it may be sitting, by motion upon notice for an order dismissing the appeal for want of prosecution (h). Tlio fee payable on setting down an appeal from a judgment of the Supreme Court of a State is £2. (n) Held by the High Court that where an appellant has a sub.stantial ground of ajjpeal, and has shown his bona fdet by i)roj)erly giving security and taking all other necessary steps in the prosecution of his ajjpeal, the mere failure to set the appeal down for hearing at the projK^r sittings of the Court as prescribed for in this rule, is not in itself, sufficient ground for dismissing the appeal for want of prosecution : Bnckwoixl v. Young (2 C.L.R. 74 [1904]). {b) Held by the High Court that where an ai)pellant to the High Court from the Supreme Court of a State who has given notice (jf ajipeal and lodged the security, has by slip failed to set down the a])peal for hearing on the proper day, the api)eal will not be dismissed for want of prosecution under this rule if, there is no reason to suppose that the ajjpellant does not intend to pro.secute the ajjpeal, if the respondent has suffered no loss, of if the slip has had no effect i>v way of putting off the hearing of the appeal : Ru»k;n v. Palmer (16 C.L.R. 285 [1912]). 16. It shall not be necessary for a respondent to give notice of Cross-appeaLs. motion by way of cross appeal, but if a respondent intends upon the hearing of an appeal to contend that the decision appealed from should be varied, he shall within the time prescribed by the next following Rule, or such time as is allowed by special order of a Full Court in any case, give notice of his intention to such of the parties as may be affected by the contention («) (b). The omission to give such notice shall not diminish the ])owers of the. High Court when hearing the appeal ; but may, in the discretion of the Court, be ground for an adjournment of the appeal or for a special order as to costs. A co])y of the notice shall be filed in the Registry. ((/) Held by the High Court that where in one action two distinct causes of action are sued ujxni and judj;nicnt is given for the ])laintiff as to (me cause of ac- tion, and for the defendant as to the other, the fact tiiat sj)ccial leave to apjx^al t« the High Court in respect of one of the causes of action is given to one of the jiarties does not entitle the other j)arty to give a cross notice of appeal under this rule in respect of the other cause of action : Wilson v. Mo)i.i (8 C.L.R. 14(i [1909] ; 1.5 A.L.R. 1.31 [1909]). (b) It is sufficient to give notice to the appellant that the respondent intends on the hearing of the a])peal to sujjport an order for a new trial ujxm grounds stated: Dim v. Macintosh {:\ C.L.Pv. li:U |190()1 : 12 A.L.R. ^sl [liMXl]). 17. Subject to any special order made in any case, notice by a respondent under the last jneceding Rule shall be given one month before the day for which the a])peal is set down for hearing. 18. Ten days at least before the day for which the api)eal is set f^rall'^'ripts to down for hearing the apj^ellant shall, unle.ss otherwise ordered, lodge !»• lodged, in the Registry situated in the place where the appeal is to be heard 152 H. C. Rules. APPEALS IN STATE LAW CASES. Part II. sec. 3. six printed copies of the transcript of documents referred to in Rule 14 of this Order, and shall also serve four ])rinted copies of such transcri])t upon each of the parties directly affected by the appeal or upon their solicitors (a) (6). Persons suing or defending jointly shall be deemed a single party for the purpose of this rule. (a) Held by the High Court that an order made ex parte for extending the time for lodging the transcript will not be set aside if the respondent is in no way aggrieved by it : Rankin v. Palmer (16 C.L.R. 28.5 [1912]). (6) As to what documents are required for the hearing of an appeal : Wilkie V. Wilkie (2 C.L.R. 883 [1905]). Printing may be dispensed with. Interlocutory judgment and orders not appealed from not to bar relief. 19. The Court or a Justice may in any case upon such terms and conditions as it or he thinks fit dispense with the printing of such documents or of any portion thereof, and may direct a greater or less number of printed copies (a) to be lodged or served upon any of the said parties. (a) Typewriting is not printing within the meaning of Section 3, r. 19, of the Appeal Rules : Peacock v. D. M. Osborne d: Co. (No. 2) (13 A.L.R. 254 [1907]). 20. An interlocutory judgment or order from which there has been no appeal shall not operate to prevent the Court, upon hearing an appeal, from giving such decision upon the appeal as is just. Notes of ruling or direction. 21. If, upon the hearing of an appeal, a question arises as to the ruling or direction of a Judge to a jury, the Court shall have regard to the verified notes or other evidence, and to such other materials as the Court deems expedient. stay of proceedings. 22. When an appeal has been duly instituted, the execution of the judgment appealed from [a] shall be stayed (6). The High Court or a Justice may nevertheless give leave to prosecute the judgment ujwn the party desiring to prosecute it giving security to the satisfaction of the Court to abide the decision of the Court on the hearing of the appeal (c). As to stay of proceedings, see H.C.P. Act, s. 38. {a) A defendant obtained leave to defend an action in the Supreme Court of Victoria upon payment of £500 into Court. At a later date judgment in the action was given him and an order was made that he be at liberty at the expiration of fourt'c-en days to withdraw the said sum of £500. An ajjpeal to the High Court against the "judgment of the Supreme Court was instituted, but it was held by the Supreme Court that the order for payment out of the money was not " execution of the judgment appealed from " within the meaning of this rule : Christie v. Robin- son (1907 V.L.R. 118 ; 13 A.L.R. 288 [1907]). (6) An appeal to the High Court from any part of a decree of a State Court suspends the execution of the whole decree, including the part against which there is no appeal. {Simpson, C.J., in Equity, N.S.W.). Bennett v. Browne (5 S.R. (N.S.W.) 541 [1905] ; 22 W.N. (N.S.W.) 185). Where an appeal to the High Court has been duly instituted from a judgment of the Supreme Court, that fact does oust the jurisdiction of the Full Court to hear an appeal to it from the same judgment, and the Full Court on that account alone will not refuse to hear such appeal. Held that the word " Court " in r. 16, Order LVIII. of the Rules of the Supreme Court, 1906, includes the Full Court : Cf Sullivan v. Morton (1911 V.L.R. 235; 17 A.L.R. 140 [1911] ; 32 A.L.T. 172). ATM'KALS FROM DEriSIOXS OF INFKHIOH ('COURTS. 153 H. C. Rules. Part II. sec. 4. (c) Prior to an amondment made to this rule in 1907, applications for leave to proceed with the judfrincnt <.f a State Court on ffivinj.' security to abide an apjx-al to the High Court mijiht i>e made to the Court appealed from. Since that amend- ment it has been held by Simpson, C..J., in Equity (N.S.W.), that applications for 8uch leave must \x' made to the High Court : Muidin v. Maultn (25 W.N. i) Hold by till' Hifili ('oiirt that whore a copy of noti c of ap|K'al is not filed within the ijrcscrihcd time, this rule does not apply, and then-fore the High ('(jurt cannot under Part I., Order LIIl., r. (i, enlarge or abridge the time for the c20. It is ordered as follows :— When anv judgment is [)roiU)Uiu'tMl in any cause or matter either by a Full C'ourt or a single Justice and the opinion of any Justice is reduced to writing it shall be sufficient to state 156 CRIMINAL PRACTICE. orally the o])inion of the Justice without stating the reasons therefor but his written o])inion shall be then published by- delivering the same to the Registrar or Associate in open Court. (Sgd.) ADRIAN KNOX, C.J. ; ISAAC A. ISAACS, J. ; HY. B. HIGGINS. J. ; FRANK GAVAN DUFFY, J. ; G E. RICH, J. ; , H. E. STARKE, J. J. W. O'HALLORAN, Principal Registrar. CRIMINAL PRACTICE. Proceedings upon Indictments filed without previous Examina- tion OR Commitment for Trial. Service of indictment. 1. When an indictment has been filed by the Attorney-General without examination or commitment for trial, an office copy thereof shall be served upon the accused person, upon which copy there must be indorsed a summons, under the hand of the Registrar and seal of the Court, requiring him to appear to the indictment within the same time after service within which he would be required to enter an appearance after service of a writ in a civil action. Such summons shall be indorsed upon the office copy whether a warrant for arrest is or is not granted. A notice shall be added to the summons informing the accused person that in default of his compliance with the exigency thereof a warrant mav be issued for his arrest. Evidence for warrant. Form of warrant. Service of indictment. 2. An application for a warrant to arrest the accused must be sup- ported by affidavit. 3. The warrant shall be addressed to the Marshal and shall require him to keep the accused in safe custody until the time appointed for the trial of the indictment, and then to bring him before the Court at the time and place appointed for such trial. 4. An office coj^y of the indictment indorsed as aforesaid must be delivered to the accused at the time of arrest. Applicationa for bail. 5. Applications for bail shall be made to a Justice sitting in Chambers. Appeaian(e. Q ^j^g accused person is required, within the time limited by the summons, to enter an appearance in the Registry named in the sum- mons in that behalf, and to deliver a copy thereof forthwith at the office of the Crown Solicitor for the Commonwealth, or his agent, in the State in which that Registry is situated. The appearance shall state the address of the accused person. Any notice required to be given to him may be given to him at such address. CRIMINAL J'|{ACTICE— PRACT1TI0NEK8' ADMISSIOX RULES. 157 7. If the accused person dues nut enter an appearance a warrant j,,.(^„|, ,j( may be issued for his arrest. - api-arancc 8. When the accused i)ersun enters an anneurance, eitlier party T''"':»i'J i'i«i"-- , I • . ' , • of trial. may, on notice to the other party, ajjply to a Justice to appoint the time and place of trial, of which notice is to be given to the accused person. PRACTITIONERS' ADMISSIOX RULES, (a) (u) Statutory Rules, IH08, No. .'}') (Kith .March, 1»()K) made under the Judi' ciary Act 190;j ;" as amended bv statutory rules 191.S. No. 2r)4 (22nd September. 1913) ; 191.S, No. 3.30 (9th Deeember, 191.3) : 1914, No. 148, 10th October, 1914. 1. These Rules may be cited as "The Practitioners" Admission short titio. Rules." 2. In addition to the persons entitled to practise in Federal Courts •^^'^pj^'^i'''" "' as Barristers and Solicitors by virtue of the Judiciary Act 1903, Hractition.r*. persons may become entitled so to practise upon the compliance with the provisions of these Rules. 3. There shall be a Board calledthe ••Commonwealth Practitioners' i"'"' »<'"""'. Board," constituted as follows: — The members of the Board shall be the Attorney-General, the Secretary to the Attorney-General's Department, the Principal Registrar, and such j)ractising barristers or solicitors as the Chief Justice mav from time to time appoint by writing under his hand. Three members of the Board shall form a quorum. The Board may delegate all or any of its powers to a committee or committees consisting wholly or in part of members of the Board. 4. The Board shall appoint a Secretary. s.cntary. 5. A person desirous of being admitt<'(l to practise in Federal students at i.aw. Courts as a Barrister and Solicitor by virtue of these Rules must first be admitted by the Board as a Federal Student at Law. 6. The following persons only shall be eligible for admission as Smus'^u'i^^I. Federal Students at Law, that is to say, natural born or naturalised Britisli sut)i(Hts wh.o are either : — {a) Graduates in arts, law, medicine, or science, or in some l^niveisity in the British Dominions, or some other University approved by the Board, have obtained their degree after examination ; (6) Persons who have ])assecl a preliminary examination which is recognised bv the Board as sufficient. 158 PRACTITIONERS' ADMISSION RULES. Evidence of passing preliminary examination. Application for admission as .Students at Law. Admission. Duration of studentship at Law. Students at Law to reside in the Commonwealth Intermediate & Final examinations. Evidence of passing Inteniiediate Examination. The following examinations may be so recognised, that is to say :^ An examination in Latin, English, Geometry, Algebra, History, and some one of the following subjects, namely : — (a) Greek ; (b) The French language and literature ; (c) The German language and literature ; {(l) Logic ; which is conducted by any University or Board constituted under the law of any State, so that the standard of proficiency required be not inferior to the standard required for the purposes of matriculation in some University in the Commonwealth, so far as the same is applicable to those subjects respectively. 7. A person desiring to become a Federal Student at law must send or deliver to the Secretary of the Board a written notice in Form I. in the Schedule to these Rules, together with certificates in the Forms II. and III., and satisfactory evidence of having obtained such degrees or of having passed such examinations as aforesaid, which shall be submitted to the Board or Committee thereof duly appointed for that purpose. 8. If the Board or Committee are satisfied, they shall admit the applicant as a student at law. and he there shall thereupon sign in a book, v/hich shall be kept for that purpose in theRegi.stry of the High Court in each State, a declaration in Form IV in the Schedule, and the Board shall then grant him a certificate, in Form V. of his admis- sion as a student at law. 9. A student at law shall not be admitted as a Barrister and Solicitor before the expiration of a period, reckoned from the time of his admission as a student at law, w^hich shall be as follows : — (i.) If at that time he was a graduate in laws one year ; (ii.) If at that time he was a graduate in arts, medicine, or science, two years ; (iii.) In any other case, three years. 10. During studentship, the student at law must be a bona fide resident ^\ithin the Commonwealth. 11. Before admission as a Barrister and Solicitor, the student at law must pass two further examinations called respectively the In- termediate Examination and the Final Examination, or produce to the Board evidence that he is entitled to dispensation from such examina- tions as hereinafter prescribed. 12. The subjects of the Intermediate Examination shall be Juris- prudence (including Roman law) and Constitutional History and Law ; certificates of having passed examinations in such subjects, conducted by any University or Board constituted under the laws of any State, so that the standard of proficiency required for passing such examina- tion be such as the Board may recognise as sufficient shall be deemed sufficient evidence of having passed the Intermediate Examination. PRACTITKJNEKS' AUMLSSlUN RULES. - 159 13. A student at law may pass the Intermediate Examination at [/j",'.r,f,"^'^,^,,,. any time after his admission as such student. Kxamiimtion. 14. The space of one year at least must intervene between the Tiim-^for passing of the Intermediate and the passing of the Final Examination. Examination. 15. The suhiects of the Final Examination shall be as follows :— sui.ji-cts of Final ■' Lxaiuinatioii. Section I. — The Law of Real and Personal Property, Equity, Admiralty, Insolvency, Probate, and Divorce. Section II.— The Law of Contracts, the Law of Torts, Criminal Law, the Law of Evidence. Section III. — Private International Law. Section IV. — The Constitution of the Commonwealth and the States, the Statutes of the Commonwealth, the Juris- diction and Practice of the High Court. 16. Certificates of having passed examinations in any of the sub- Evidcntf of jects in Sections I., II.. and III., conducted by any University or ExlTmination. Board constituted under the Laws of any State so that the standard of proficiencv required for j^assing such examination be such as the Board may recognise as sufficient evidence of having passed the Final Examination in th6se subjects. 16a. Examinations shall be conducted by ])ersons appointed by the Board for that purpose. 17. A student at law who is a graduate in laws of any University Exempt from in the British Dominions shall not be required to pass the Intermediate ''*"""* '""• Examination, nor to pass in Sections I.. II., and III. of the Final Examination. A student at law desiring to take advantage of this Rule must submit to the Board evidence of his exemption at or before the time at which he would otherwise have been required or permitted to pass the examination. 18. When the Board is satisfied that a student at law has passed certificate, any examination, or is entitled to exemption from any examination, they shall deliver to him a certificate to the effect of Form VI. or Form VII. 19. Every student at law shall, duiiiig the period of his studen- f;;;;{;;!»;;,»'-'^'^*- ship, attend the sittings of the High Court held in the State in which uigii court. he is from time to time present, as often as it is reasonably ])racticable for him to do so. 20. A Students' Attendance Book shall be kept at each Registry ^^Vt"!,>dImo of the Higli Court, and every student attending the Court shall sign iiook. his name in the Book on each occasion nf his attendance. 160 . PRACTITIONERS" ADMISSION RULES. fo'r'pVnaV""'' ^^' ^^ ^^^ Board is not satisfied that a student at law has complied Examinatioa. with the provisions of Rule 19, they may refuse to allow him to come up for Final Examination for such period as they may think fit, and may impose such conditions as to his future attendance in Court as they may think fit. 21a. The following persons, that is to say : — (1) Every person who satisfiess the Board that he has (a) Completed a period of ten years' service as an officer in a Registry of the High Court, and that he has, during the last five of such ten years been en- trusted with duties requiring professional know- ledge of law ; or. (6) Completed a period of ten years' service as a Clerk in the Office of the Crown Solicitor for the Coni- monwealth (including any Branch Office at the capital of a State), and that he has, during the last five of such ten years, been in charge of a sub-department of the office, and entrusted there- in with duties requiring professional knowledge of law ; or (c) Completed a like period of ten years' service partly in a Registry of the High Court and partly in the Office of the Crown Solicitor for the Common- wealth, and has, during the last five of such ten years, been charged with such duties as afore- said ; (2) Every person who satisfies the Board that he has completed a period oi five years' service as an officer in a Registry of the High Court or in the Office of the Crown Solicitor for the Commonwealth (including any Branch Office at the capital of a State), or parti}' in a Registry of the High Court and partly in such Office, and that he has, for the last two years of such period, been Chief Clerk or Clerk in Charge of a Branch Office shall have the status and shall be entitled to the privileges of a student at law who has passed the Intermediate Examination, and shall be entitled to submit himself at any time thereafter for the Final Ex- amination, but shall not otherwise be subject to the foregoing pro- visions of these Rules imposing obligations upon students at law. Admission. 22. When a student at law has passed his Final Examination the Board shall, upon his application, proceed to consider whether he is entitled to admission as a Barrister and Solicitor under these Rules, for which purpose they may require him to furnish such evidence as they think fit. If the Board are satisfied, they shall grant him a cer- tificate in Form VIII., and thereupon he shall be entitled, u})on pay- ment of the prescribed fee, and upon motion made in open Court at any siting of the High Court at which he is present, to be admitted as a Barrister and Solicitor of the High Court. Upon admission he shall sign a roll to be kept for that purpose. PHACTITI()NEK8' ADMISSION Kl'I.ES. 161 22a. The Board shall, before f^ranting a certificate in Form VIII. bIXu!^'"'" to any of the persons mentioned in Rule 21a. require sati.sfactory evidence to be furnished that such person is of good fame and character and fit to be admitted to jtractise a.s a Barrister and Solicitor. 23. A student at law dissatisfied with any decision of the Board "uslJl^uHion."^ may a|)peal to the High Court or a Justice, and the Court or Justice may allow or dismiss the appeal or make such (.rder as may be just. 24. The High Court may, upon motion in oi)en Court, order the '^"^• name of a student at law to be removed from the list of students at law% or order the name of a Barrister and Solicitor admitted under these Rules to be struck off the Roll, or order a Barrister and Solicitor to be suspended from practice for such period and on such terras as may be just. 25. The following fees shall be payable under these Rules : — £ s. d. On application for Certificate of Admission as a student at law o .5 (.) On application for exemption from Intermediate Examina- tion On application for Intermediate or Final Examination in Section III. On application for Certificate of having passed Final Ex- amination . . On Certificate for Admission as a Barrister and Solicitor. . 26. All fees shall be ijaid to the Secretarv of the Board, and shall AppUration be applied under the direction of the Board in defraymg any expenses incurred in the execution of these Rules, including any fees paid to examiners appointed by them. 27. Persons qualified to practice as Barristers or Solicitors of the Superior Courts of the United Kingdom, or of any self-governing part of the British Empire may, if the Court deems that special and suffi- cient reason exists, be admitted on motion to practise as Barristers or Solicitors of anv Fedeial Court. 1 1 5 5 1 1 52 10 162 FORMS OF PROCEEDINGS, ETC, No. 1. — General Form of Writ of Suitnnons. In tiie High Court of Australia. Between A.B. fan infant, by (J.H., his next friend], Plaintiff. and CD. and E.F., Defendants. George the Fifth, by the Grace of God, of the United Kingdom of (4reat Britain and Ireland and of the British Dominions beyond the Seas, King, Defender of the Faith : To CD. of and E.F. of We command you that within days after the service of this writ on you inclusive of the day of such service, you do cause an appearance to be entered for you in Our High Court of Australia, in an action at the suit of A.B. ; and take notice that in default of your so doing the plaintiff may proceed therein, and judgment may be given in your absence. Witness : Y.Z., Chief Justice of Our said High Court, the day of in the year of Our Lord One thousand nine hundred and [L.S.] Memorandum to be subscribed on the Writ. N.B. — This writ is to be served within twelve calendar months from the date thereof, or, if renewed, within six calendar months from the date of the last renewal, including the day of such date, and not afterwards. Appearance \or Appearances] to this writ may be entered by the defendant [or defendants] either personally or by solicitor at the Principal [or District] Registry of the High Court at {Registry from which writ is issued). Additional meniorandidn to be subscribel on writs issued from District Registries. If any defendant neither resides not carries on business in the State of {State in which District Registry is situated), his appearance may, at his option, be entered either at the place above mentioned or at the Principal Registry of the High Court at {Principal Seat of Court). Irulorsements to be made on the writ before issue. The plaintiff's claim is, &c. {state briefly the nature of the relief claimed iii the action), This writ was issued by the plaintiff in person, who resides at , and whose address for service is at the same place [or at ] [ or This writ was issued by X.Y., of , whose address for service is at , solicitor for the plaintiff, who resides at , or This writ was issued by V.W., of , whose address for service^is , agent f( r X.Y., of , solicitor for the plaintiff, who resides at ] {mention the locality and situation of the plaintiffs residence iyi such a manner as to enable it to be ( asily discovered). Indorsement to be made on the writ after service thereof. This writ was served by me on the defendant at on day, the day of ,19 Indorsed the day of , 19 (Signed) M.N. (Address) FORMS. 163 F0KM8 OF WRIT. No. 2— Writ of Sininii'iiis in ArliotiM in rt-m. In the Hij.'li Coiiit of Australia. A.M., I'laiiitilT. against The Shij) X |o/ Tiic Sliiji X and It.-iL'lil or till' Ship .\. Ik r carj.'!" and froit'lil or (if the action in (t(j(iind cnnjo only) The carjiu (X the Ship (stati thf mniii of ship on hoard of which the cargo is or lately watf laden), or {if the action is against the proceeds realised by the sale of a Ship or cargo) The proceeds of the Ship X {or of the cargo ex the Ship X), or Fifty Ca.ses of Opium (or as the ca-e may he)]. Georgk Tin; Fii'Tii. Iiy tlic (Jrace of (lod, &c. To the ownei-s and all otliers interested in the Shi]) X, her cargo and frciglit (or as the case may be, de-icribiiig the sidjject matter of the action) : We command you, &c. (n-t in Form Xo. 1). (Memoranda and indorsements as in Form Xo. 1) Note. — // the action is by the Crown, instead of the plaintiff's name, put • lUir Sovereign Lord the King," adding, if necessary, " in His Office of Admiralty." Xo. 3. — Writ of Serrice beyond the Jnrisdiclion, or when notice in lieu of Service is to he given beyond the .Jurisdiction. [Title, ,{•(•., as in Form Xo. 1.] Georuk, &c. To (M)., of Wr command you that within days afUn- the service of this writ [o./ notice of this writ (as the rase may be)\ on you, inclusive of the day of such service, you do cause an appearance to bo entered for you in our Hiiih Court of Australia, in an action at the suit of A.B. ; and take notice, that in default of your so doing tiie plaintiff may, by leave of the Court or a Justice, proceed therein, and judgment may bo given in your absence. Witness, &c. (Memoranda and indorsements as in Form Xo. I) Further indorsement to be made on the writ before the issue thereof, or before ammd- ment to include a defendant to be served beyond the Commonwealth : — N.H. Tliis writ is to l)c used wlicrc tlic defendant or all the defendant-;, or one or more defendant or defendants, is or are to be served beyond the Com- monwealth of Australia. When the defendant to be .served is not a British subject, and i.s not in British Dominions, notice of the writ, and not the writ it.self, is to be served upon him. 164 FORMS. FORMS OF WRIT— APPEARANCE. Xo. 4. — Xotice to be served beyond Ike Jvri.sdiction in lieu of Writ. In the Hitrh Court of Australia. Between A.B., I'laintifi". and CD. and E.F., Defendants. To E.F., of Take notice that A.B., of , has commenced an action against you, E.F., in the High Court of Australia, by writ of that Court dated the day of A.D. 19" , which writ is indorsed as follows [coijy in full the indorsements] ; and you are required within days after the receipt of this notice, inclusive of the day of such receii^t, to defend the said action by causing an appearance to be entered for you in the said Court to the said action ;' and in default of your so doing the said A.B. may, by leave of the Court or a Justice, proceed therein, and judgment may be given in your absence. You may appear to the said writ by entering an appearance personally or by your solicitor at the Principal Registry of the Court at {Principal Seat of the CouH)\ot' your option {if the writ is issued from a District Registry), at the District Registry' oj the Court at {place of District Beqistry from which writ is issued)]. (Signed) A.B., of dbc. or X.Y., of att aj» £fuardiaii nd litem of tli(' above named infant defendant, and has no int«re8t in the matters in question in this cause adverse to that of the said infant, and the consent of the said (i.H. to act as such guardian is hereto annexed marked with the latt r A Signed and sworn, &e. Note. — To this affidavit must be annexed the document signed by the guardian in testimony of his consent to act, which may be in the follow imj form : — I, G.H., of {state residence and description), consent to act as guardian ad litem of CD., an infant defendant in this cause, and I authorize Mr. Y.Z., f»f, &c., solicitor, to defend this cause as solicitor for me as such guardian. O.H. Witness X.Y. Xo. 9. — General Form of Xotice of Appearance by Deferulant. {Title, dbc, as in writ of Summons.) Take notice that I have this day entered an appearance in this action at the l'rinci|)ai [or District] Registry of the High Court of Australia at [for the defendant CD.]. t require \or do not require] [or The said defendant requires {or does not requii-e)] a statement of claim to be delivered. CD., defendant in jx-rson \or Y.Z., Solicitor for the Defendant CD.] The address of CD. is His address for service is [or The place of business of Y.Z. is His address, for service is In the casr. of a conditioiud appearance insert the word " conditional '" before " ap- j)earance." .Yo. 10.— L\DOKSEMEXT.S OF CLAIJI IN AdMIRAJ.TY ACTIONS. Damage l/y Collision.— Thv ])laintiffs, as owners of the ship Mary (her cargo, &c., or as the case may be), claim the sum of £ against the ship Jane for damage occasioned by a collision which took place {stale where) on the day of Salvage.— Tho plaintiffs, as the owners, master, and crew of the shij) Mary claim the sum of £ for salvage services rendered by them to the ship Jave { her cargo and freight , &c. , or as the case may be) on the day of \{) , in or near {state ichere the services were rendered). Pilotage.— The plaintiff claims the sum of £ for i)ilotage of the ship June on the day of 1!) , from {state where pilotage commenced) to {state where pilotage end(d). Towage. — The plaintiffs, as owners of the ship Mary, claim the sum of £ for towage services rendered by the said ship to the ship Jane (her cargo antl fi-eight, ki-.. or as the case may be) on the day of 19 at or near {st(dc where the services were rendered). Master's Wages ami Disbursements.— The plaintiff i lainis the sum of £ for his wages and disbursements as master of the ship .Mary (and to have an account taken thereof). Seamen's Wages.— The ])laintift"s, as seamen on boaril the ship Mary, claim the sum of £ , for wages due to them, as follows : — To A.B., the mate, £30 for two months' wages from the day of To CD., able seaman, £ , &c., &c. (and the plaintiffs claim to have an accmint taken thereof). 166 FORMS. WARRANT OF ARREST IN ADMIRALTY ACTIONS. Necejisaries, Repair-'i, dsc. — The plaintiffs claim the sum of £ . for necessaries supplied {or repairs done, &f.. '^'-• the case may be) to the .slii]) Mar// at the port of on the day of (and the plaintiffs claim to have an account taken thereof). Possession. — (a) The plaintiff, as sole owner of the ship Mary, of the jiort of , claims possession of the said ship. (/;) The plaintiff, as owner of 48-64th shares of the ship Mary, of the port of , claims possession of the said shij) as against ('.!)., owner of 16-64th shares of the same ship. Mortgage. — The plaintiff, under a moitgage dated the day of , claims against the proceeds of the ship Mary the sum of £ as tlii' amount due to him for principal and interest. Clainhs between Co-Owners. — («) The plaintiff, as ])art owner of the sliij) Mary, claims against CD., part owner of the same ship, the sum of £ as part of the earnings of the said ship, due to the plaintiff, and to have an account taken thereof. (6) The plaintiff, as owner of 24-64th shares of the ship. Mary, being dissatisfied with the management of the said ship by his co-owners, claims that his co-owners shall give bail in the sum of £ , the value of his said shares, for the safe return of the ship to Bottomry. — The plaintiff, as assignee of a bottomry bond, dated the day of , and granted by CD. as master of the ship Mary, of , to A.B. at the port of , claims the sum of £ against the ship Mary (her cargo and freight, &c., or as the case may he) as the amount due to him under the said bond. Derelict. — A.B. claims to have the derelict ship Mary (or cargo, &c., or as the c.rise may be) condemned as forfeited to His Majesty in His Office of Admiralty. Piracy. — A.B., Commander of H.M.S. Torch, claims to have the Malay prahu Foo Sung and her cargo condemned as forfeited to His Majesty as having been cap- tured from pirates. Under Foreign Enlistment Act. — A.B. claims to have the Britisli shi]) Mary, together with the arms and munitions of war on board thereof, condemned as for- feited to His Majesty for violation of The Foreign Enlistment Act 1870. Under Custotns Acts. — A.B. claims to have the ship Mary (or as the case may be) condemned as forfeited to His Majesty for violation of (state Act vnder which for- feiture is claimed). Recovery of Pecuniary Forfeiture or Pevalty. — A.B. claims judgment against the d(!fendant for penalties for violation of (state Act vnder which penalties are claimed). Warrant of Arrest in Admiralty Action In Re.m. George, &c. To the Marshal of our High Court of Australia in Admiralty. We hereby command you to arrest the ship or vessel of the port of (and the cargo and freight, &c., as the case may he), and to keep the same under safe arrest until you shall receive further orders from us. Witness, &c. No. 11. Form I. Notice of desire to become a student -at-law. To the Commonwealth Practitioners' Board. I, , of (add residence and occupation) do hereby declare that I am desirous to become a student-at-law for the purjjose of being admitted to practise as a Barrister and Solicitor in the Hig.i Court of Australia. ADMISSION OF PIJACTITIOXKHS. 'J'lie particulars <.'i\iii below an- true to the Ix'st of my kncjwicdge ami belief. Dated the day of 19 . (1) A'anie of eaiulidate : (2) Residence : (3) Occupation : (4) Name of father : (5) Kesidence of father : (6) I'rofession or calliiiji of father : (7) Date and |)lace of liirtli : (Signed). No. 12. FoK.M II. Certificato of three fiou.seholder.s to acconijiany Form I. To tiie Coninionwealth Practiti(jner.s' Board. We, the undersigned hou.seholders, resident in , certify that we have known , wlio now resides at , for years. We believe him to be a person of good fame and character, and to bo a fit person to be admitted as a student-at-law of the High Court of Australia. Dated this day of Ht . (Signed) A.B. f".D. E.F. No. 13. Form III. Certificate by two ])ractising Barristers or Solicitors on the Commonwealth Registry, to accom])any Form II. To the Commonwealth Practitio!iers' Board. We certify that we know , and that we believe him to be a fit person to be admitted as a student-at-law of the High Court of Australia. Dated this day of HI (Signed) A.B. CD. Practising Barristers or Solicitors of the said Court. No. 14 FoKM IV. Declaration. I . do sincerely promise that 1 will obey the Rules of the High Court of Australia, so far as they may apply to me. Dated this day of 1!) . (Signed) No. 15 Form V. Board's Certificate of Admission as student-at-law. This is to certify that A.B. of , has complied with the Rules as to the admission of students-at-law of the High Court of Australia, Dated this day of 11> CD. Secretarv of the ( 'oniinonwealt h Practitioners" Board. 168 FOKMS. ADMISSION OF PRACTITIONERS. No. 16 Form VI. Board's Certificate as to Intermediate or Final Examinations. This is to certify that A.B., of , has passed the examination prescribed by the Rules relating to the admission of Barristers and Solicitors to practise in the High Court of Australia. Dated this day of 19 . CD. Secretary of the Commonwealth Practitioners' Board. No. 17 Form VII. Board's Certificate as to Exemption from Examination or from Examination in Certain Subjects. This is to certify that A.B., of , has satisfied the Board that he is entitled to exemption from the Intermediate Examination {or the Final Examination in Sections I. and II.) under the Rules relating to the admission of Barristers and Solicitors to practise in the High Court of Australia. Dated this day of 19 . CD. Secretary of the Commonwealth Practitioners' Board. No. 18. Form VIII. Board's Certificate of Compliance with Rules. This is to certify that A.B., of , has complied with the Rules relating to the admission of Barristers and Solicitors to practise in the High Court of Australia. Dated this day of 19 CD. Secretary of the Commonwealth Practitioners' Board. SCALE OF FEES. 16& .\'i. |!l. T. — To BE TAKK.N IN Til IC KE(;ISTKIKS. Stuniiioiis, II lilji, tiii'l ('i))iinii-s/iit>iix. On hfalinj; a writ «tf suiniiiuns for coiiiniciicciiuTit of an action . . On sealing a concurrent writ of summons for commcnconu-nt of an action On sealing a writ of subjjoena for not more tiian three persons For every additional person named in the subpot^na On soalinp a writ of execution On sealing a writ of mandamus, certiorari, habeas corijus. or jirohiliition On scaling writ of assistance On sealing writ of inquiry On sealing any other writ On sealing a renewed or amended wiit <>f snmindns On sealing any originating summons On sealing summons for directions under Order W. ( In sealing any other summons On scaling any commission issued bj* authority of the Court or a .Justice whether under the authority of a Statute or of Rules of Court Oil scaling any document issued from the Court for use bej'ond the juris- diction of tlie Court, not being a writ or other document for service on a party to a cause or matter ( )n sealing any other document with the Seal of the Court . . The above fees include the filling of all copies or praeciiies or other documents rc(juired to be filed on the sealing or issuing of the above documents. s. d u 1(» (► 2 (> ') () 1 (1 r* (» 1 10 (» 10 o 5 5 .3 1 o 10 l(t o Appeitrntx-rs. On entering an appearance, for each person . . . . ..026 If by a corporation or joint stock company or a comj)aiiy incor[)orated by "statute or Roval Charter 10 (> Co pits. For an office copy of any record of the Court, or of any document filed in the Kegistry, if in the English language, for every folio. . ..008 If in a foreign language, the actual cost of making and examining same. and in addition for marking and sealing same as an office copy 2 t> For an office cojjv of a jilan. map, section, drawing, photograph, or dia- gram, tlic actual cost of making and examining same, and in addition for marking ami scaliuL' same a.s an office copy . . . . . . 2 (> Attemhiiicci. ( »n an application, with or witliout a subpoena, for any oflicer, not being the Associate of the Justice presiding at the Court, to attend with any record or document at any Court or |)lace out of the Court building, in addition to the just charges and ex|x>nses of the officer for each dav or part of a day he shall nccessarilv be absent from hi.s office .' ' " 10 The officer may require a deposit on account of any further fees, charges, or ex{x»nses which may probably become ]>ayable beyond the amount jmid for fees, charges, and expenses on the aj)plication, and the officer or liis clerk taking such (Icjjosit shall thennipon make a memorandum thereof on the a])plication. The officer may also require an untlertaking in writing to pay any further fees, charges, and exiK'nses which may bc In respect of every witness sworn and examined by an oHicerof the Court in his office, unless otherwise jjrovided, including oath, for each hour or ])art of an hour . . . . . . • • ■ ■ - • . . H) For an examination of witnesses by any such officer away from the office. in addition to reasonable travelling and other expenses, per day (»r part of a day The officer may require a deposit on account of fees and expenses which may probably become jjayabjc beyond any amount paid for fees and expenses upon the examination ; and the officer or his clerk taking such deposit shall thereupon make a memorandum thereof and deliver the same to the party making the deposit. The officer may also require an undertaking, in writing, to pay any further fees and expenses which may become payable tn-yond the amount so paid and dejjosited. On examination of witnesses by persons other tiian dfliccrs of the Court (these fees to be retained by examiner for his own use). Upon giving an a])pointment to take an examination . . . . . . .5 Or, if evidence taken on commission, for giving such ap])oiiitmcnt. to each commissioner who acts at the examination . . . . .5 If the time occupied in an examination is less than three lioui-s .. ..300 If the time occupied in an examination is more than three hours, for each day or part of a day . . . . . . • • • • • • . . o When evidence is taken on commission, tlu" two preci-ding fees shall be paid to each commissioner who acts at the examination. On a request to examine witnesses abroad, such fee shall be payable to the examiner as is prescribed by the laws of the country where the examinaticm is to take place, and shall be paid to the Registrar to be transmitted with the request. The term " Officer of the Court " does not incl\i(ie an associate. 3 ffeariiKj. On setting down an ajjpeal to the Full Court from a juiigmciil of tlic Supreme Court of a State or of a Judge of the Supreme Couit of a State 2 If from an order made in Chambers .. .. .. .. .. ..100 On setting down an ajipeal from an inferior Court to the Full Cnurt. whetiier by special case or otiierwise . . . . . . . . ..100 On entering a special case or demuri-er for argument, either iiefoix* a single .Judge or before the Full Court, in the finst instance, including in the latter case, when necessary, the filing of the memorandum requiring same to be entered before the Full Court .. On filing like memorandum of another party On entering an actitm for trial before a Justice, with or without a jury, in addition to the fees, if any, payable in resjioct of th(> jury On entering an election j)etition for trial .. 1 o 1 1 (1 (1 10 10 1 5 2 1 1 10 10 5 £ s. d. 2 6 172 COSTS. On hearing an action on motion for judgment On hearing any cause or matter set down for further consideration On hearing any cause or matter commenced by a motion on notice or b}' petition, except when otherwise j^rovided On hearing any other petition in Court On setting down an appeal from a Justice of the High Court On setting down any appeal not above mentioned. . Drawing vp and entering Judgments and Orders. If made in Court on the original hearing, or hearing on further con- sideration of a cause, or on the hearing of a special case or petition, or on a])])lication to the Full Court, unless otherwise provided If a judgment without hearing, or by consent If a judgment under Order XXVI., Rule 7 or Rule 8, or Order XXX., Rul(! 8, or Order XXXI., Rule 2 Any other ordei-, whether made in Couit or at Chambers . . The above fees include filing the duplicate original. Taxation of Costs. For taxing a bill of costs when the amount does not exceed £10 . . When the amount exceeds £10, for every £5 allowed or a fraction thereof These fees, except where otherwise provided, shall be taken on signing the certificate or on the allowance of the bill of costs as taxed, but the fees shall be due and payable, if no certificate or allocatur is required, on the amoimt of the bill as taxed, or on the amount of such part thereof as may be taxed, and the solicitor, or party suing in jierson, shall in such case pay the proper sum, the amount whereof shall be fixed by the taxing officer. The taxing officer may require a deposit on account of fees before taxation, not exceeding the fees on the full amount of the costs as submitted for taxation, and the officer on taking such deposit shall make a memorandum thereof on the bill of costs. Miscelluneons. On a fiat of a Justice . . . . . . . . . . . . . . ..050 On a party attending before a Judge signifying his consent to a consent order being drawn, to enter judgment against him . . . . ..050 On entering a satisfaction of judgment .. .. .. .. ..050 II. — To BE TAKEN IN THE MARSHAL'S OFFICES. The same fees are to be taken as by the practice of the Supreme Court of the State in which the proceeding is taken or the act is done or authorized and required to be taken by the Sheriff in respect of a like proceeding or act in a cause pending in that Court. A deposit on account of the fees applicable to any proceeding or act may be required before such proceeding is commenced or act done, or at any time during the course thereof, and a memorandum of the amount deposited shall be delivered to the party making the deposit. In case of dispute as to any of the charges the amount is to be taxed by the taxing officer without fees. HI. To BE TAKEN BY COMMISSIONERS FOR AFFIDAVITS. For each oath or affirmation . . If not at Registry or Commissioner's office . . Or if above one mile from Registry or Commissioner's office, over and above travelling expenses . . For marking each sheet of an affidavit or affirmation or of an annexure For signing each certificate to an exhibit . . For attesting each instrument of security, for each surety . . Note. — In the case of Commissioners who are not subject to the provisions of the Commonwealth Public Service Act 1902, such fees may be retained by the Commissioners for their own use. 1 6 5 1 1 1 1 5 INDEX Abamjonment. See Dislontixuaxce. A H AT KM i; ST. See Chax(je OK Parties. action of, no, on niairiafie, ileath or in«olv<'n(V 3. Addixg Parties, 23. See Parties. Address defendants appearing in person, 35. by solicitor, 35. fictitious or illusory, 35. for service appearance, to be stated in mcnioiandum of, by defendant, 34. indorsement of. on originating proceedings, 22. originating i)roceedings. indorsement on. 22. plaintifF suing in jjcrson. 22. pleadings, on. 47. .solicitor, of, 22. 34. agent of. 22, 34. Adjourxmext. Chambers, to, fmrn ('(uirl. 11 1. to, where receiver appointed ti> Court. 114. ('ourt, from, into Chambers. 117. inquiry, of, as to damages by otticer of the Court. 8.3. summons for direction, of, 44. trial, of, 82. Admiralty .A( tiox. appearance. 103. api)rai.senient of sale. in<.l. arrest of property, 102. ll>3. .service ami. I <'."{. INDEX Admiralty Action books, etc., 110. caveats and releases, 104. costs, 111. discontinuance, 104. general, 101. intervention in, 35. Motions, 108. pleadings, 104. practice, 101. preliminary Act, amendment of, 52. contents of, 52. filing of, in, 52. oj^ening of, 52. reference to Registrar, 108. sale, appraisement or, 109. service and arrest, 10.3. of process by Marshal, 110. time, 110. trial, 106. warrant to arrest property in, may be served on Sunday, 137 writs in rem, 103. for of, 113. Admissions amendment of, 70. costs of proof where refusal to make, 70. denial not specific, where, 48. directions, summons for, 44. effect of order on, 44. documents, of, notice for, 76. effect of, on subsequent proceedings, 76. facts, judgment upon, 76. notice as to, 76. pleadings, by not delivering, 65. notice by, 76. notice of, in writing, 76. payment into Court, by, 56. pleadings, in, 47, 76, costs of not making proper, 55. judgment on, 76. when allegations of fact not denied, 48. refusal to make, costs, of, 76. withdrawal of, 76. Advertisement substituted service by, 32. Affidavit address of deponent in, 87. admiralty action, by intervener in, 35. affirmation by, deponent maldng, 88. alteration in, 87. appeal, on, further evidence by, 143. appearance, in cases of, by infant, 36. belief, when it may be stated, in, 87. blind person, by, 87. contents of, 87. cost of scandalous and irrelevant matter in, 88. when not read, 88. cross examination on, 86. default of apj^earance, on, 37, 38. defective, use of, 88. deponents, by two or more, 87. description and true place of abode of, to be stated m, 87. names of, to be indorsed on, 88. documents, of. See Discovery. evidence, by, by agreement, 11. may be given, by, 10. by order, 10. on hearing of matters, 10. exhibits to, 88. INDEX iU. Affidavit ex parte Applications, on, 89. facts to be deposed in, 87. filing of, 88. ex parte Applications, before use on, 89. practice as to, 88. special time foi-, SO. form of, 87. irregularities in, 88. guardian {ad litint), on aj)point merit of, 'Mi. hearsay in, 87. illiterate person, by, 87. indorsements on, 88. information and belief, sources of, in, 87. interlineation in, 87. interloc\it. where ])roceedings takc^n upon default of appearance, 37. writ of summons, 32. signature to, 10. of ])arty or solicitor to document, ])roof of, by, 10. stamping of, 88. swearing of, 89. title to, 8G. applications for rcrlondri, etc.. on, 118. hdhcuti corpus, on, 124. Affikmatiun. deponent, by, making an affidavit, 88. power of High ('ourt to administer. 10. Amend.mknt. ailmissions of, 70. appeal, notice of. 14.5, 149. on, power of Court as to, 143. clerical mistakes, of, 67. costs of. See Costs. defect or error in any proceediiiir, of, 1 1. defendant, by, 07. Demurrer, of, when liocuiniiits not suttiiirntly set out, 01. disallowance of, 07. failure to amend after order, 07. formal defects, 1 1. Full Court, by, Ofi, 143. general power of High Court or .lustice, as to, 1 1, 00. hahen.i rnrpit<, of return to writ of, I !*.">. indorsement on writ of summons, (iO. irregularities, 11. judgment or order, of, 00, 07. parties, as to, 23, 24. where inincces.sary, 22, 23. plaintiff, by, (ili, 07. pleadings, of, (}(), 07. confession and avoidance, in case of, 48. judgnu-nt, in case of non-delivery of, .")(). not allowed pending Demurrer, 01. unnecessary or scandalous matter, in, ."il. vacation in, by leave, 131. iv. INDEX Amendment pleading to amend pleading, ()7. preliminary act, of, 52. proceedings of, 11. statement of claim, .58. terms of, 66. time for ajiplication for, 66. writ of summons, of, 66. adding defendant on, 24. disallowance of, 67. failure to amend after order, 67. joinder of other causes or relief by, 27. mode of, 66. service of amended writ, after, 24. unnecessary when claim extended beyond indorsement, 52. Answer, by way of cross action, 55. Answers, several, 48. Answers to Interrogatories affidavit, by, 71. contempt of Court, on motion for committal for, 126. corporation or companies, by, 71. costs of, 71. exceptions to, 72. filing of, 71. further order for, 72. by viva voce examination, 72. insuificient. 72. Marshal, in action by or against. 75. objections to interrogatories may be taken by, 71. ommission to make, 72. order for, or for further, 72. non compliance with, 75. privilege in, 72. service of order for, 75. sufficiency of, 72. time for, 71. use of, at trial, 75. Appeal. See also Land Tax, Income Tax. Income Tax assessment, against, 129. Land Tax assessment, against, 129. practice in special cases. Land & Income Tax assessments, in, 130. Appeal to High Court ((general), death of party to an, 16. definition of, 2. institution of, time and manner of. prescribed by Rules of Court, 15. Interstate Commission from, 154. security on, when required, 14. amount of, 15. alteration of, 15. stay of proceedings on, 16. AppEALS^from Decisions of Inferior Courts, copy of proceedings to be filed, 1.54. hearing, place of, 154. general provisions, 154. notice to be filed, 153. procedure, 153. proceedings, coj)}' of to he filed, 154. security, 154. time, 154. Appeal from Justice of High Court, amendment on, 143. cross appeal, 143. notice of, 143. time for, 144. evidence, 144. further, apjilication for, 143. ex parte application, from refusal of, 142. l.\L>EX V. Appeal hearing of may bo exjH^dited, 146. inU'rlocutoiy oitler not to bar to, 144. mode of instituting, 140. new trial. See Ni:\v Tui.\l. notes of Justice as to ruling or directions regarded b\ (ouit on, 145. notice of, 141. filing of, 142. length of, 142. .service of, 141. time for, 141. papers for Justice on, 144. place of hearing of, 140. power of Court on, 14.*1. reason for decision of .Justice to he trMiismittcd on, 140. re-hearing, to be by way of, 140. rule nisi, on refusal of, 144. security fi>r costs on, 14, 70. stay of ])roceeding8, not to optratc as, 14(5. time for setting down, 142. transmission of documents, on, 144. Appeal from State Courts from which an appeal laj' to (^uecn-in-Coundi at establishment of Commonwealth. not exercising feileral jurisdiction, procedure on, 147- lo2. See Api'E.vl from Supreme Court of States. Appeal from Supiriiu- Court of States to High Court, exercising federal jurisdiction. deliver\- and transmission of papers on, 147. notice of, filing of, 147. place of hearing, 140, 14peal, lol. notice of, lol. giving of unauthorised ajijx'al. 149. leave, motion for, 147. affidavit on, 147. notice of, 149. copy of to be tiled. 149. title of [)roceedings on, 148. order for. recission of, 147. mode of instituting, 147. notes of ruling or discretion nf Justice to be regardi'(l on. l.")2. notice of, 147. filing of, 149. service of, 149. time for. 149. title of, 14>S. to state grounds, 147. place for hearing of. 147. ])rinted transcripts to be lodged, l.jl. security for costs on, 147. form of, I.IO. setting down for hearing, lol. stay of proceedings on. ir)2. title of ])roceedings on, 148. transmission of documents on, 1")0. Appearance, address for service to be given on. ."{4. ehangi- of ])arties, after order a« to, .S8. conditional, SfJ. in actions against partnei's. 99. defatilt of. :{7-.'JS. See l)KFAri/r of Appearancf. flefendant. by, is waiver of right to object to jurisdiction. '.W. in person. ."{.">. of. by solicitor. '.i'>. several by same solicitor. ."!."). delivery of |)leadings. when no. 47. vi. INDEX Appeaeaxce, entry of, in District or Princii^al Registry, 34. mode of, 34. notification by telegrajih of, at principal registry, 35. time limited for, '29. infant by, 30. See Infants. intervener, by, Admiralty Acticm, 35. lunatics, 24. memorandum of address for service on, 35. contents of, 35. form of, 35. irregular, 35. several defendants, 35. motion to set aside writ before entering, 30. notice of, 35. partners by, where sued in firms name, 99. person in, 35. Principal Registry, 4, 34. protest under, 36. setting aside, 35. writ before, 35. solicitor by, 35. defendants by same, 35. time for, 29, 35. Applications, how made when no mode prescribed, 21. Appraisement, in admiralty actions. Sec Admiralty. Arrest, by leave without affidavit, in admiralty actions. See Admiralty. Arrest of Person, charged with contempt of Court, 125. Arrest of Property. See Admiralty. Attachment, non compliance with order to answer interrogatories, etc., for, 75. solicitor, of, for not entering an appearance, 35, 98. for not giving notice to client of order to answer interrogatories, 75. State laws as to. apply to enforce judgments, subject to limits prescribed, 12. writ of, ai^i^lication for, 98. peremptory order before issue of, 98. undertaking to do an act, 97. Bill of Exchange, consideration for, need not be pleaded, 50. defence in action on, 54. Books, failure to comply with order for production of, 9. production of may be ordered, 9. Breach of trust, joarticulars of, 47. British subject, service on, out of jurisdiction, 33. Carrying on proceedings. See Change of parties, order as to parties for purpose of, 38. service of, 38. Case, to be stated and signed in Interstate Commission appeals, 154. sent back for amendment in Interstate Commission appeals, 154. Cause or matter. abatement of, save in certain cases, 38. commencement of, mode of, 21. continuance of, on death, marriage or insolvency, 38. definition of, 2. discontinuance of, 62. setting down, for further consideration, 83. transfer of, 4, 5. where no proceeding in, for one year, month's notice of intention to proceed to be given, 132. withdrawal of, 62, 63. Cause of Action, pleading, striking out, where no reasonable, .50. Certiorari, application for. how made, 118. notice of, 119. title of affidavits, on, 118. proceedings, on, 118. 1M>KX Certiouari, costs of. ll'J. orflcr absolutJ- for, costs of Kcrvi<'«' when allowi-d, 1 lit. in first instance, 12<>. order nisi for, objections to b<' stated in, 1 19. returnable before Full Court, \IS. ser\ice of, iin Cji rk nf Court of Sunmiary jurisdiction, 119. time for, 119. seal to Ix- alfi.xed to writ of, l.'JK. security for costs on. 1 19. Chambers, ailjournment from, into Court, 117. Court into, 1 17. ai)i)licati(m in. fuitliei- consideration, on. I Hi. investment or disposition of ni(jney or securities. 110. investment or reiatinji to. IKi. mana<;einent of property, relating to, llfi. ])ayinent of int< rest or dividends, i-elating to, 1 Hi. summons, to be by, 117. service of summons. 1 17. subpoena for attendance of witness at, 8t). summons, what may be included in same, 117. Change of parties, apj)lieation for order as to, 38. assignment, creation, or devolution of estate, on. .'{8. death of jtarty, in ease of, .S8. insolvency of ])arty. in case of, .'{8. judgment on failure to j)roceed after death of .sole ])laintiff or defendant, 38 marriage of party, in case of, 38. order as to, 38. discharge of varying, 38. service of. 38. Change of venue, 12, 79. Cheque, defence in action on, .54. Chief Justice. See Justices of the Hkui Court. commissions to administer oaths, 11. process to be tested in name of, 3. Christmas, excluded from computation of time. 1.31. service of instruments on. 137. Claim. See Admiralty. Clerical mistake, judgment or orders, in. 07. Commexc?:ment of. action, 21, 27. (■i\il proceedings, 21. COM.MISSION. (late of. .3. Kings name, to be in. 3. sealing of, 3, 138. signing of, 3. testing of, 3. to examine witne.s.ses. See E.xaminer Court or Justice may grant, 10. directions on issue of, 10. rcfjuest to examine witnesses in lieu of. 84. to take oaths and afKdavits, 11. Commissioner for atlidavits. api)ointment of. 11. approval of security by, on aj)pointment of receiver, 114. cross examination before, of person who has made affidavit, 8(i. fees payable to, 109-172. security, execution of. in presence of, 08. Committ.\l. See Attachment. contempt of Court, for. See Contempt of Court. disobedience to judgment or order, for, 98. judgment or order to abstain from doing anv act mav !)<• enforced by, 97. return to order for, uiuiecessary, 131. 12 undertakino; to abstain from doinj; an act. enforcement of. bv. 97. viii. INDEX Committee of lunatic. See Lunatic. Company. Sec also Corporatiox. discover}' by, 72. interrogatories to, 71. production of documents by, 73. .service of originating proceedings on, 32. service of originating proceedings on, foreign, 32. Concurrent writs, issue of 29. for service out of jurisdiction, 30. renewal of, 30. Condition precedent, pleading to, 48. Conditional appearance, entry of, 36. in action against partners, 99. Confession, and avoidance, pleading, 48. defence, 59. Consent, evidence as to mode of taking, 11. guardian ad litem, to be, 25. next friend, to be, 25. person added as party, of, 24. point of law, to hearing of, before trial, 50. procedure, etc. to, when persons under disability, 25. special case by, 77. trial, to, of questions of fact without pleading, 78. withdrawal of cause, to, 63. juror, to, 1 15. Consolidation of causes or matters, application for, 116. fliscontinuance, effect of, in case of, 63. upon information of {quo warranto), 124. Contempt of court. See also Attachment, Committal. arrest of j^ersons charged with, 125, 126. committal for, costs of application for, 127. committed in face of court, 125. discharge of persons committed for, 127. disobedience to order for attendance is, 84. motion for committal for. adjournment of, for answer to interrogatories, 126. form of notice of, 126. service of ncjtice of, 126. order for interrogatories on, 126. punishment for, 126. Contract, action upon, preservation of subject matter in, 112. denial of, in pleading, how construed, 49. implied from letters, j^Ieading, 49. Copies. See Office Copies. papers, of, for Justice at trial, 82. pleadings, of. See Pleadings. service of documents by leaving, 31. special case for Justices, 78. writ of summons, as amended to be filed, 66. service of in case of lost writ, 31. to be left before issue, 29. Corporation, discovery by, 72. guardian ad litem, cannot be, 25. interrogatories to, 71. mandamus, service of, on, 120. next friend, cannot be, 25. officer of, production of documents by, 73. service on, 32. out of jurisdiction, 32. Costs, admissions, in case of failure to make, after notice in pleading, 76. affidavits, of, in proper form, disallowed, 87. proxility in title, 86. scandalous and irrelevant matter in, 88. INDEX ix. Costs', amendments of pleadingK, of, 0(5, 07. pending dcniurrer, tiO. appearance, eonditional, in case of, 'M'>. application of. direetion.s under summons, for, 44. incidental, in, I.S4. not disposed of, i:i4. reserved, 134. cau.se, of, removed from inferior Court, \'.VA. confession of defence, after, .V.t. counsel, fees of, 134, 135. defendant, of, when plaintiff iiiipn>|MMiy joined. 2-. demurrer of, when allowed or overruled, til. setting a.sitle with, <>(). disallowance of, by .lu.stice, 133. discontinuance of action, on, 62, 03. judgment for, 03. discovery, of, by interrogtaories, 71. order for, to save. 72. discretionary, 133. dismissal of action with, for want of prosecution, 03. documents, of, proving, after notice to admit, 70. estate, out of, 133. event of trial, when to follow. 133. expensive proceedings, of unnecessarily, 134. former action, of, stay of jirocecdinu's until ]iayment of. I 1"). further proceedings unne.ces«ary, when. 134. incidental apj)lications in cause, of, 134. inferior court, of cause moved from. 133. inquiries as to shares, of, 133. inspection bv jury, of, 1 12. inU-rlocutory proceedings, of. orders to. upon summons for directions. 44. interrogatories, of, 71. irregularity, of summons to set aside proceedings f(jr. 13'.t. issue of, to follow event, 133. judgment for, and of. Sec .Iidc.mknt. mandamu.s, of, 119. of peremptory writ of, 121. of })ersons showing cause against. 120. misjoinder of j)arties, on, 22. motion not disposed of, 134. particulars, of order for, 51. party, of adding, 23. payment into court, in case of consolidated actions. 5S. with denial of liability. 57. payment into court of money paid in as a security, 7(». jileadings, of, struck out, 51. when proper admissions not made. 55. prohibition of, 1 19. jiroxilitj' of, in ])leadings, 45. title to affidavits, S(>. proving documents, of after iiotire to admit. 70. facts, that ought to have been admitted. 70. f/iio wnrmnto, of, 119. i i - refusal of witness to attend, etc.. before examiner, occasioned b\ . X'- reserved, 134. scandalous matter, order striking out, in affidavit. SS. Kccuritv for, 69. See Securttv kdk Co.sts. set off," of, 1.3.3. damages and, 133. Betting a.side judgment, by default, of, 3S. (55. S2. solicitor and client, i . - 1 order for. as Ix'twceii. when pleading, struck out. .>i. solicitor, guardian, nd litem, of, 133. special, case, of, agreement to i)ay. 7S. statement of claim, of prolix, 45. of voluntary, unnecessary, or iinpro|)er. .>.{. stay of action pending payment of, 115. stop order, of, 1 14. X. INDEX Costs, striking out alleged cause of action, on, ij'.i. taxation of, 184. review of, 134. trial by jmy, to follow event, 133. Counsel, fees of. 134. Court, adjournment from, or into, 117. fees of, 169-172. holidays of. See Holidays. notice from, service of, 136. Criminal practice, appearance, 156. default of, 157. bail applications for, 156. trial, place of, 157. time of, 157. indictment, service of, 156. warrant, evidence for, 1.56. form of, 156. Cross action. See Cross Claim. defendant may set up, 45. defence, as to, must be specially pleaded. 55. Cross appeals. See Appeal. Cross claim. See also Defence. answers to, 48. connection of, with original subject matter, 45. costs of security for, 69. cross action lias effect of, 47. defendant may set up, 45. delivery of, 45. demurrer to, 59. disposed of separately, 45. execution not to issue, without leave, 65. matters arising pending action, as to, 59. misjoinder of plaintiff does not affect, 23. particulars of, in trial without pleadings, 44. pleading, separate and distinct facts, 47. set off. See Set Off. striking out of, 45. Cross examination, person, of, who has made affidavit, 86. Crown, actions by, when in name of King, 28. Damages, ascertainment of, when a matter of calculation, 83. assessment of. after interlocutory judgment, on default of appearance,38 pleading, 64. in respect of, continuing cause of action, 83. writ of inquirj', under, 83. defence in action for, 54. payment into Court in action for, 56, pleading, particulars of, in. 47. reference to Officer of Court to ascertain, 83. service out of jurisdiction in action for, 33. set off costs and, in same manner, 133. undertaking as to, on injunction, 113. writ of inquiry to ascertain, 83. Death of parties. See Change of Parties. 38. to an appeal, 16. Debt, action for, denial of debt insufficient defence in, 54. particulars of, 51. payment into Court in action for, 56. Declaratory judgment, 26. Default, complying with order to discovery and inspection of documents, in, 75. production of books in, 9. to answer interrogatories in, 75. Default of appearance. affidavit of service to be filed on, before proceeding in action, 38. delivery of ]>leading, bj' filing on, 47, 137. INDEX xi. Default, infant or pi-rson of unsound niinrovidcd for, ."JK. service, date of, to Ix' indorsed ..n writ before jilaintifTcan pro.-e.d in.:}2. mode of, in ca.se of, 1.37. trial at, 82. Default of pleading. adniis.sions of facts bv, b.l. claim, statement of, by non-delivery of, (i3. di.snii.s.sal of action ii))nn, J53. close of pleadings on, (irt. defence, by non-delivery, (i.^. entry of judgment in, (i3, iin. judgment upon, in ca.ses not specially ])rovided for, (io. damages, in action for, 04. debt or liquidated demand, in action for. <>4. detention of goods, etc., in action for. 04. motion for, 0"). several defendants, against one of, effect of, Oo. setting aside judgment obtained on, 0.^. DEFECT.S and errors, amendment of. II. Defence, abatement in, 55. action without pleadings, in case of, 44. confession of, 59. cross action, when facts relied on as establishing, .55. costs of proving what ought to be admitted in, 55. damages deemed to be put in issue by. 54. delivery of, 45. default in. 0.>. time for. 55. demurrer and, in one pleading, 00. demurrer to, 50. denial in action on Itills, etc., 54. of claim in representative capacity, .54. debt, insufficient, 54. wiiere tlamages claimed, 54. discontinuance of, 03. further and better particulars. 51. where matter arises pending action and after defence, 5f). liquidated demand in money, in action for. .54. under contract, in action for, 54 matter ari.sing pending the action, of. r>i). " not guilty by statute," of, not allowed, 4S. part of claim only, to, 04. particulars of, 51. payment into Court. .50. See Pavmknt into (Vnirr. to be stated in. 50. relief claimed by. on distinct grounds. 47. service of. ,')'>. .several, 48. special, whin (>p( ii tn defendant in tiial. without pleadings. 44. statement of, 45. striking out. See Strikim; ()it. tender before action, of, 204. time for delivery of, 55. when appearance nut of time, 35. Defendant, absent, not concluded by judgment unless served, 23. adding. See Parti i:s. address of, 34. costs of, where plaintiff imi)n)|ierlv joined, 22. death of. 38. on appeal. Hi. xii. INDEX Defendant, default of appearance by, at trial, 82. definition of, 2. insolvency of, 38. joinder of, where plaintiff in doubt, 23. joint, or joint and several liability, of, 23. jud<;ment against one or more, 23. jurisiliction, out of, issue of writ against, 28. marriage of, 38. not interested in all the relief claimed, 23. jmyment into Court, 56. See Payment into Court. .service on, 31. See Service of Originating Proceedings. out of jurisdiction, 33. See Service out of Jurisdiction. substituted, 32. See Service, Substituted. who may be joined, 23. Delivery, pleading of. See Pleading. Demurrer, allowed as to part of pleading, 61. wliole of pleading, 61. amendment pending, 61. costs of, on amendment of pleading, 60. when allowed or over-ruled, 61. defence and, in one jilcading, 60. document, founded on, 60. entry of, for argument, 60. before Full Court, 61. filing pleadings on setting down, 61. ground of, 60. indorsement on, of notice to set down, 51. judgment on, 61. when not set down, 60. with leave to plead, 60. pleadings, copy of, for Justices on, 62. setting aside of, when no ground stated, 60. setting down of, 60. time for, 60. Depositions. See Evidence, Examiner. Detention of property, interim order for. 111. Directions, Justice, by, when practice not prescribed by rules, 139. summons for, 43. Disability, j^ersons under. See Infants, Lunatics. Discontinuance, agreement for, 63. consolidated actions, effect of, on, 63. defence, before, 62. defendant, by, by leave, 62. judgment for costs on, 63. leave of the Court for, 62. notice of, 62. order of the Justice, by, 62. ])art of ease abandoned, 62. plaintiff by, 62. withdrawal by consent, 63. Discovery (and inspection). applications for, may bo in summons for direction's, 44. attachment for failure to comply with order, for, 75. default in making, 75. documents, f)f, 72. affidavits of, 72. . objection to produce to be taken m, 72. application for, 72, 74. corporation, by, 72. infant, by, 75. order for, 72, 74. service of, 75. special order for, 74. verified copies instead of inspection, 74. infant, by, 75. interrogatories, by, 70. See Interrogatories. issues, determination of, before granting, 74. INDKX xiii. Discovery, Marslial. in actions against, 7j. next frii-nd, by, 15. ni)n-'-l)j('(». point of law. on, ")(). want of jirosecution, for, when claim not delivered, (>:{. notice of trial not (). discovery of, 1-. See Dist t)Vi;R\ . filing of. See Filing. inspection of, application for. 7:5. bank and trade book-. 7."{. business books, 74. co])ies of, taking, 74. directions as to, summons for, 44. notice in writing i-c(|uii-cd for, 7.'}. order for. 7.'{. noii-coiiipliaiice with, 7."). .si-rvire of. on solicitor sufficient, 7"). place- for. 7.'{. prcmatuic. 74. referred to in pleadings oi' affidavits, 7:}. time for, 7."{. Land Ta.v a])pcals for hearing in. I2!l. notice to admit, 7(5. effect of on c'osts. 7<). to inspect, 73. to produce, where documents referred to in pleadings, 7."{. pleaded, how, 49, 50. I)rinted. I)y whose directions, 1 4(1. copies to be fvn-nishcil on (leiiiand in writing. 140. may be disj)ensed with. 15:^. expense of, 140. j)aper, on what. 14(». transcripts, to be lodged. 151. production of, 7.*l. discretion of Court as to. 74. non-compliance with order for, 75. objections to, 7."{. on ground of privilege. 74. officer of Court, Ixfore. when directed to ascertain damages, S4. order for, !>, 12. attendance to ])roduce, 84. failure to comply with, 9, 75. |)enalty for disobedience, 84. service of, 75. referred to in pleailings or affidavits, 73. time for, 73. veritied copies. 74. INDEX Documents, proof of signature of party or solicitor, 10. referred to in s])ecial case, 77. sealed witii seal of Court, receivable in evidence, '.). service of, 136-137. transmission of, from Registry on appeals, 144, 147, l.iO. when transfer of cause ordered, 4, 5. temporary, 5. by telegraph, 6. trial, for use of Justices, 82. Drawing up judgments and orders. adjournment of api)ointments, 95. appointment, for passing judgment or order, 94. settling judgment or order, 94. by whom, judgments and orders are to be drawn up, 93. default in attending appointment with documents, 95. Documents to be filed before judgment or order signed, 93. left with Registrar on bespeaking judgment or order, 94. engrossing, judgment or order, 95. judgment or order to be filed, 95. notice of appointment to be served on opjjosite party, 94. proof of service of, 94. Registrar may require party to submit drafts, 94. service of notice of appointment, 94. proof of, 94. settling or passing judgment or order without any appointment, 95. time for bespeaking judgment or order, 94. when orders need not be drawn up, 96. judgment or order not bespoken, 94. Embarrassing, pleading, etc., struck out, 51. Error, power to amend generally, 11. clerical in judgment or order, 67. Evidence. See Affidavit, Examiner, Subpoena, Witnesses. affidavit, by. See Affidavit. answer to interrogatories may be used as, 75. appeal on, power to take, 143. printing, 144. books or writing containing, order for production of, 9. depositions not to be given in, without consent of court, 85. fresh, discovery of, after judgment or order, 96. further on appeal, 143. mode of giving, on hearing of a matter, 10. at trial, with exceptions shall be oral, 11. notes of, to be left at chambers before hearing appeal, 144. notice to admit documents in. See Documents. office copies, admissable in, 3, 139. open Court, to be given in, 11. oral, testimony at trial of causes shall be, with exceptions, 11. may be directed on hearing a matter not being the trial, 10. order for inspection, detention, or preservation of property for the purpose of obtaining. 111. particulars facts. Rule of Court as to proof of, 9. pleading not to state, 45. request for taking, 84. special case, on, 77. summons for directions, as to, 44. witness, testimony of, at previous trial, may be ordered to be read from Justice's notes, 8. Examiner. See Commission. appointment of, order for the, 10. attendance before, 84. disobedience to order for, 84. certificate of, to depositions, 85. depositions taken before, filing of, 85. not to be given in evidence without consent, 85. transmission of, to Registry, 85. INDEX Examiner, exjx'ii.scs of wilncssis cxaminod Ix-fore, 84. oatlis, may administer, 8;"). objections by witness to questions before, 85. costs occasioned by, 85. refusal of witness to attend before, or be sworn, 84. costs occasioned by, 85. s|)eeial report by. 85. summons for directions a« to, 44. witness before. See Wit.ne.sses. subj)oena for, 85. Execution, ajiplication of State laws as to, 12. again.st jxTsons. See Att.\( ii.ment. limitations may be prescribed, 12. discharge of pro])erty taken in, 1."^. interpleader i)roceedinv, 124. injunction, for, 1 l.'{. interlocutory orders, for, ll.'i. leave to appeal to High Court for, 147. summons, b}-, in certain cases. 117. witness, for attendance of. after refusal, 84. writ of assistance, for, 1 24. Exhibits, affidavits, to, 88. Fees, barristers and solicitors, of, 133, 134, 161. scale of, to be taken in Registries of tlie High Court, 1(59-172. Filing, affidavits, of, 88. See Ai'Kidavits. amended writ of summons, 66. answer to interrogatories, 71. certificate of refusal of witness to attend, 84. delivery of pleadings, by, 47, 137. depositions taken before examiner, 85. /lalxds roii)U<, return to writ of, 125. mandamus, writ of, 121. next friend or guardian, authority to use name as, 25. notice of appeal, of, 142, 149. ])leadings, of. See Pleading. quo warranto, of disclaimer on information of, 123. .security, of, 69. service of document. l)y, 137. special case, of, 77. statement of claim. 38. Final judgment, definition of. for pur])ose of appeal rules, 141. Firms, see Partners. Foreign corporation, service on, 32. Foreigner, service on, when out of jurisdiction, 34. Forfeiture, action for, in King's name, 28. Forms, certificate of three householders, 167. two ])ractising barristers and solicitors. 167. admissit)n as a student at law, 1()6. as to intermediate or final examination, 168. exemption from examination, 168. of compliance with rules, 168. declaration, by student at law, 167. entry of appearance by defendant. 164. conditional. 164. guardian, as. affidavit for, 165. indorsement of claim in admiralty actions, 165. notice of appearance by defendant. 164. notice to be served beyond jurisdiction in lieu of writ. 163. INDEX Forms, special notice under Order X\'I., 164. writ of service, beyond the jurisdiction, 163. summon.s, general, 162. in actions in rem, 163. Fraud, particulars of. in tiial without pleading, 44. pleading of, 4S. fraudulent intention, 49. ])articulars of, 47. Frivolous, action or defence, striking out of, 50. demurrer may be set aside, 60. Full Court, a])peal to. 8ee Appeal. i-.crtiorari, etc., order for, returnable before, IKS. definition of, '2. Marshal to attend sittings, when required, 131. sittings of, 137. s])ecial case may be heard by, in first instance, 78. Further consideration. adjournment for, 83. ap])lication for, in Chambers, 116. new trial, of motion for, 145. General provisions of rules. application of Rules relating to Original Jurisdiction, 155. dismissal for want of prosecution on apj)ellant\s application, 155. expediting apjieals, 155. Good Friday, service not to be affected on, 137. Guardian ad litem. corporation cannot be, 25. costs of solicitor, when, 133. infants, of, 24. See Infants. married woman cannot be, 25. person of unsound mind, of, 24. Habeas corpus. application foi-, 124. affidavits on, 124. title of proceedings on, 124. discharge of person in custody without writ of, 125. notice to be served witli writ of, 124. order absolute for, in first instance, 124. order for production of person in confinement as witness, 124. return to writ of, 125. amendment of, 125. filing of, 125. indorsement of, 125. proceedings on, 125. .seal to be affixed to writ of, 138. service of writ of, 124. High Court, appeals to. See Appeal. conflicts between, and State Courts, 12. costs in. See Costs. evidence in. See Evidence. execution of judgment of. See Judgment. oaths, power of, to administer, 10. Seal of, 3. Holidays, 138. exclusion i>f. in computing time, 131. offices of the Court not open on, 138. what shall be observed as, 138. Husband. See Married Woman. joinder of as, i)arty on marriage, 38. service of writ on when both defendants, 31. Illegality, pleading as defence, 48. Income Tax appeals. effect of treating notice of objection as, 129. hearing of, 130. papers to be lodged by appellant before hearing of appeal. 130. to be instituted by notice of motion, 129. INDEX xvii. Indorsement, address of. Si-v. Auduess. affidavit, on, at time of filing, 87. change of parties, on order a.s to, 38. claim, of, (jn writ of KuniiiKjns, 21. amendment of, 27, (Jti. S. costs of action after removal from, 133. Information, and belief in affidavits. 87. 7«o irarrtinU). of. 122. Injunction. aj)pli.">. certilicate for entry of, 8.S. cf/7/ora/-(' to remove, 119. See Ceutiohaki. clerical error (jr mistake in, 07. confession of defence, for costs, 5!). <-opy of. delivery of, when judgment pl'-adcd. ")(). declaratory, may be given, 20. liefault by. See DEFAi'i/r of Ai-peakance, Defailt of Pleadixg. on failure of defendant to c<»ni])ly with order for production of books, 9. defendants, against one or more, 2'.i. in default of ai)))earance, .'}7, .38. in default of pleading, fi.'i, 64. definition of, 2. demurrer on, •) I. Sec 1 )i;.MriU!i;i',. discontinuance, on, (ili. dismissal of. See Dis.missai, of Action. drawing uj). See Drawino ip. JrnoME.NTs and Okdeks. oid'orcing, 12. entry of, after ascertainment of damages, 83. trial of issues of fact without i)leading, 79. against person giving security, 68. special case, on, where as to ])ayment of money and costs, 7S. trial after, 8:5. consent, by ))arty in ])erson, !'."{. wiien party a])i)ears h\- Solicitor. 9."5. date of. to be jjronounced in (ouit, 92. other judgments, 92. memorandum to be indoised. 92. mode of, 92. on jirodiiction of albdavit or document, 9:!. ordei- or certilicate, 9;{. Registrar'^ certilicate, 9:{. satisfaction, memorandum of, 92. time to be stated for doing any act ordered to be done, 92. firm or jiartners, against, 100. interlocutory. See IxTEKi.ociTOKV, .h dii.ment. moticm for, 89. See .Motion for .It doment. non suit, of, effect of, 8.'}. ])lea(!ing of, oO. pronouncement of. 1.")."). (plashing of, crrtioniri |)roceedings, 1 19. ijdo ii'dnaiilo. on information of, 12"{. relief against, in matters arising after judgment. 9(1. 97. satisfaction of, entry of, 97. seal, office, to be affixed to. 1.38. XX. INDEX JUDU.MKXT StTvico of, 136. setting aside, 96. on default of apjx^arance, 38. at trial, 82. ])leading. Go. summary, leave to sign, 4l. See Leave to Sign Summary Judgment. special case, on, according to agreement, 77. upon findings of jury, 7. Jurisdiction. See High Court, Supreme Courts of States, State Courts. conditional entry of appearance not submission to, 36. criminal. See Criminal Jurisdiction, Criminal Practice. persons residing within the Commonwealth, over, 33. service out of, 33. Sec Service of Originating Proceedings. Jury, application of State Laws to, 8. in criminal cases, 7. inspection by, 112. summoning of, 8. trial of suit without, 7. application by party for, with, 79. oi- issues with. Court may order at any time, 7. with, to be before single Justice, 80. Justice of the High Court. absence of, temporary transfer of cause upon, 5. appeal from, 140. definition of, 2. Knowledge, affidavits, to be shown in, 87. pleading, 49. Land, action relating to, service out of jurisdiction in, 33. Land tax appeals. hearing of, 129. pajjers to be lodged by apjiellant before hearing of appeal. 129. to be instituted by notice of motion, 129. Law, point of, dismissal of action on, 50. point of raised on demurrer, 59. See Demurrer. pleading, .50. j)reliminary point of, dcci.^ion of, before trial, 77. presumption of, need not be pleaded, 50. question of, in Interstate Commission appeals, determination of, 154. Laws, application of State laws. See State. Leave, appeal, to, procedure on, 147. special, procedure on obtaining, from Supreme Courts of States, 147. Leave to sign summary judgment, application for, 41. bj' summons, 42. defendant may show cause, 42. directions as to trial, 42. judgment for part of claim, 42. leave to defend, 42. summary disposal, 42. where one defendant has good defence but other not, 42. Liberty, to jirocced in cause where out of jurisdiction, 33, 34. Liquidated demand, action for, mere denial insufficient, 54. judgment in, for default of appearance, 37, 38. pleading, 63, 64. Long vacation, duration of, 138. Lost writ, order in case of, 31. Lunatic. See Unsound Mind. actions by and against, 24. committee of, consent of, to procedure, 25. may sue or defend by, 24. service of originating proceedings on, 32. default of appearance by, 37. next friend of, action by, 24. INDEX xxi. LuNATK . sorvico of originating proceedings on, .'}2. s|K'cial case, where a party, "7. Maolstkatk. See Inferior Court. Malick, pleading of, 49. management (jf proj)erty, ap|)lieation relating to, Ilti. Maxaukk, I'.i. See Receivkk. Mandamus, application for writ of, application of prrtseciitor upon, ll.*M. how made, 1 18. judicial tribunal to, time for. 122. title of afliflavit, on, llS. proceeding.s in case of. 1 is. costs of writ of, 1 19. form of writ of, 120. interi)leader, proceedings in natur" of, 121. order absolute for, costs for service when allowed, 1 19. in first instance, 118. pcremptorj^ writ of, 121. costs of, 121. order instead of, 122. order nisi for, order, persons to show cau.se against, 120. returnable before Full Court, 118. principles upon which granted, 120. return to writ of, 120. pleadings to, 121. service of, cojiy of, on prosecutor, 121. time for, 120. .seal to he affixed to, 138. service of writ of, 120. Markinc, concurrent writ, 29. ])l('a(ling, 47. renewed writ of summons, 30. Marriace, action not to abate on, 38. defence of, on trial without pleadings, 44. party joinder of husband, in ca.sc of, 'iS. ^Married woman, acticjn by or against, 24. next friend, or guardian ad litem, cannot be, 25. service on, 31. special case, where a party. 77. Marshal, actions by or against, 13. deputy, action by or against, 13. discovery against, 7o. interpleader by, 12. process, duties of, when charged with service and execution of, 130. return, mode of making by, 130. on non est ittvenlu-^, by. 130. of proces.s by, 130. of writ, 131. Marshal and other officers charged with service and execution of process, attendance at Court, bv Marshal, 130. other oHicer.s, 130. Matter. See Cause and .Matter. definition of, 2. hearing of, evidence on, 10. matter arising jx'nding action, 59. mode of commencement of. 21. Me.morandu.m. See Appearance. appearance of, 34. Misjoinder of parties, 23. See Parties. Misrepresentation, particulars of, in pleading, 47. Mistake, amendment of clerical, 67. as to jiarties. Sec Parties. 13 INDEX Mode of trial. See Trial. Motion, commencement of proceedings by, 21. evidence on, 10. infant, how to appear, 3b. judgment, for, 89. See MoTiOK for Judgment. leave, or special leave to ajjpeal, for, 147. notice of, for committal, 98. contempt, 98. new trial, 144. See New Trial. Motion for Judgment. admissions, on, 76. default of pleadings, on, 65. judgment of Court to be obtained on, 89. power of Court on, 90. setting down, 89, 90. time for, 89. trial of issues after, 90. 3I0TIONS in general. adjournment, affidavit, notice of, 92. copies of affidavits on originating motions to be served, 92. costs of abondoned motions, 91. counsel in order of seniority, to be moved by, 91. defendant served but not appearing, 29. dismissal or adjournment, 91. fact, trial of questions of, 91. notice of, affidavits, 92. failure to give, 91. length of, 91. service of, with originating proceedings, 91. to name Court, 90. where to be given, 90. notices, originating, 90. trial of questions of fact, 91. New assignment, abolition of, 58. New trial, appeal includes, 2. admissions niav be directed on, 8. application for, after trial by Justice without Jury, 144. verdict of jury, 144. to be by notice of motion, 144. grounds for, 144. motion for, notice of, 144 amendment of, 145. time for service of, 145. power of Court on, 145. security for costs on application for, 70. Next friend. appointment of, 25. authority of, to be filed, 25. consent by, to procedure, 25. j o -.- necessary before adding as next friend, 24, 2o. corporation cannot be, 25. infant of, 25. insane person, 25. married woman cannot be, 25. removal of, 25. 1111- stay of proceedings improperly instituted by, Ho. NoN compliance, with Rules of Court, effect of, 139. NoN suit, judgment of, 82, 83. Not Guilty, plea of, 48. Notice, acceptance of money paid into Court by defendant, of, 57, 58. admission of facts of, 76. admit facts or documents to. 76. aijpeal, of. See Appeal. appearance, of, 35. INDEX xxiii. Notice, apijlication, of, for temporary transfer of taiiHf, '>. where documents telegrajilied. (J. evidence of service of, may Ix- teletrraplic-d, (i. uttaeliment, of application for, 9«. rerliorari. in jiroceediiigs for, 119, lliO. cliatitrc of parties, indorsed on order as to, 'M. committal, of ajjjjlication for, !)H. Court, from, service of, 136. cross ap]>eal, of, 143, 151. directions, of intention to apply for. under {jeneral summons. 44. filing of, ca.se. in ajjpeals against inter-State ('ommissicms flecisi«m8, security, of, after six months. ir>4. Iiabeas corpii", to he .served with writ of, 124. in lieu of service. See Skkvk k ok OKKiiXATlNi; I'kuikedixus. intention to proceed in cause after delay of one year, of, 132. intciim preservation of jjrojjerty, of a]>plication for. 112. mandamus, of order of grantintr of order nisi for. 121. motion of. See Motion. objection of, in income ta.x appeals. jiarties, other to, in inter-Stati- Commission ajipeaN, l.">4. paymi'iit into Court of. oli. ])lea(ling. 49. setting down of cause on motion for judgment, of. ,s!(. demurrer, (iO. solicitor being authori.sed to a])pear. as to. 137. by, to client of order for discovery. 7.">. sjH'cial c. I."}!!, marking and .sealing of. 138. hours, 138. seal, 138. Okkk KRs of High Court. ixamination of witnes.ses before, 10. power of, to administer oaths, 85. reference to, to ascertain damages, 83. Opinion of Court, on sjjeeial ca.se. 77. Orders. See Jihcment. amendment of errors in, 07. appeal from. See Ai'PEAL. declaratory, may be made, 2(>. to show cause, commencement of jiroecedings by, 21. why writ of ctrlioniri, mandamus, etc.. should not issue, 1 18. habvni corpn-- shoidd not be granti'd, 124. Okicinai, jurisdiction. See HicH Court. Okicinatinc ])roccedings. ciclinition of, 21. indor.sement on. of address. 22. .service (»f, 31. See Sehvh E of OHKiiNATiNt; 1*kO( eei>in<;s. on added defiMidant, 24. out of jurisdiction. 33. Oricinatin(; summons, commencement of civil ])!occedings, 21. PaI'KR.s, for .hisfiii' nt income tax and land tax apjicais, 12!l. trial, 82. special case, on hearing, 78. ujwn appeal. 144. 13a xxiv. INDEX Parliament, Rules of Court, address by, to Governor-General to annul, 14. Partial relief, 20. Particul.\rs, debt, expenses, or damages, of, whicli exeeed throe folios, 47. direction as to, summons for, 44. further and better, order for, .")1. order for, 51. effect of. .11. ])leading, 47. ])reliminary act, to be contained in, 52. stated or settled account of, j)lcading, 50. trial without pleadings, in case of, 144. Parties, absent, 23. action not dismissed for want of, 2.3. adding, application for, 24. by Justice at any time, 22. change of interest, on, 38. consent required on, plaintiff or next friend, 24. defendant, 24. plaintiff, 24. service of amended originating proceedings after, 24. survival of cause of action, in case of, 38. when wrong plaintiff, 23. alternative claims, in case of, 22, 23. application as to, 22, 23, 24. change of, 38. See Change of Parties. consent of. See Consent. costs of reason of mis-joined plaintiff, 22. cross claim not affected by mis- joinder, 23. Crown actions to be in name of King, 28. ^ death of party, in case of, 38. to an appeal, 16. defendant. See also Defendant. added, service of amended writ upon, 24. adding, 23, 24. alternative claims against, 23. jointly and severally liable, 23. relief sought, extent of interest in, 23. who may be joined as, 23. doubt as to, 23. improperly joined, 23. infants as. 24. joinder of, as defendants of, 23. plaintiffs, 22. joint claim by, 22. Justice may add or strike out, 23. lunatics as, 24. mandamus, on application for, 120. marriage of party, in case of, 38. married woman, 24. See M.\rried Woman. misjoinder of, 22. effect of, 23. on cross claim, 23. mistake as to, 23. necessary, 23. new, application to discharge order joining, 38. new, service of order on, 38. next friend. See Next Friend. non-joinder, of, 23. numerous persons having same interest, 23. partners. See Partners. plaintiff, adding and susbtituting, 22, 23, 24. consent of persons added as. 23, 24. doubt of, as to parties, 23. joinder of when common question arises, 22. mistake as to, 23. next friend added as, 24. who may be joined as, 22. wrong or doubtful, 23. IM)KX XXV. Parties, rcprosentative. appointment i>f, li.J Kcrvici- on added, 24. .sjx'cial ease, to, 77. strikinj; out, 23. 24. .substitution of, .serviee of amended .nijrinatin^.' |ifiMicdinjis after, 24. when wrong ])laintiH. -'.i. umieccssariiy joined, 23. unsound mind of, 24. want of, cause not to Ix- .struck out for. 2."!. I'.MtTNERS, actions Ix-tween, KX). 1)V or against, U.S. appeai-ance hy, 99. ])ersons not a party. 99. under j)rotest. 99. ajjpiication of Kuics to jierson trading as a firm. KHi. default of ajjpearance, judgment against, in, 99. denial in defence of. alleged constitution of a firm, ")4. disclosure of names, of. a])piication.s by summons for, 9s. on demand in writing for, 98. staying jtroceedings on default of, 98. execution in actions hetwci'n, 10(). execution of judgment against. lOU. judgment against a firm, KM), service of originating proceedings, on, 99. notice in what capacity it is effected, 99. P.\TKNTS, appeals in matters relating to, 127. cro.ss, 127. documents in, to l>e forwarded to I'rincijjal Registry, 127. how instituti'd, 127. papers in, for .lusticc. 127. revocation of. l)etition. 128. appearance, notice of, to be indorsed, 128. dismissal for want of pro.secution, 128. form of, 128. notice to a])i)ear to be indorsed, 128. persons to be served with, 128. service, 128. time for hearing. 128. title of. 128. P.vuPBRS, proceedings by and against. affidavit by party or solicitor tiiat case is true, 2'!. case to be laid before t'oimscl, 2o. counsel and solicitor may be assigneil, 2."). default in jjroicedings by pau[)er, 25. duty of solicitor, 2"). no Court fees ijayable, 2o. notices, etc., on behalf of pauper, how to be signed. 2"). pauper not to receive costs. 25. suing or defending as ])aupers, 2.">. taxation of costs, 25. Payment, pleading, 48. Payment into Court. acce])tance of. by jilaintiiT in satisfaction, oti. admission of liability by. 5(5. bank receipt on. 5(j. consolidated action, in, .kS. costs after, 57. defendant, by, 5<>. dis])osal of money afti-r. 70. disputed contract, action in respect of. 112. enforcing order for, 97. lien, claimed to relea.se, U.S. money, how dealt with, in case Tiot acci'pted. 57. notice of. 5(5. ill lieu of security. ()9. ])li'ailing. 5(). xxvi. INDEX Payment, satisfaction, notice of acceptance, in. 06, 57. security in li(!u oi, (iO. tender, on defence of, 56. time for, 56. i'A\ MEXT out of Court. nif)ney paid in as security, after disposal of same, 70. money standing to credit of cause or matter, 116. order for, when payment not accepted by j)laintiff, 57. Penalties, action for, to be in name of King, 28. Performance, pleading, 48. Pendente lite. assignment, creation or devolution of an estate, 38. perishable goods, interlocutory order for sale of, 112. Persons of unsound mind. See Unsound Mind. Place of sitting of High Court, for hearing appeals, 140, 146, 147. Place of trial. See Trial. Plaintiff. See Parties. adding, 22, 23, 24. address to be indorsed on originating proceedings, 22. See Address death of, 38. default of apijearancc of, at trial, 82. discolsure by, names of partners, 98. discontinuance by, 62. See Discontinuance. insolvency of, 38. joinder of more than one, jointly or alternatively. 22. marriage of, 38. security for costs by, 69. wrong, order in case of, 23. Pleading. See also Cross Claim, Defence Demurrer, Reply, Statement of Claim. abatement, plea in, abolished, 55. account stated or settled, 50. admissions in, 48. costs for not making ])r()per, 55. alternative contracts, 49. amended pleading, to, 67. amendment of, 66. where demurred to, 61. answer by way of cross action, oii^ answers, several, 48. breach of trust, 47. close of, 65. by joinder of issue, 58. coUision, in action for, 52. condition of mind, 49. precedent, when to be .«]jecified, 48. confession and avoidance in, 48. contract contained in corres])ondence, 49. denial of how construed, 49. copies of, for use of Justice at trial, 82. Justices on appeal, 144. Justice on demurrer, 61. cost of. See Costs. cross action, 55. cross claim. 45. See Cross Claim. damages, to, is unnecessary, 54. default of, 63. See Defalut of Pleadinc;. defence, 54. See Defence. delivery of, 45. by filing, 47, 137. defence, 54. demurrer, 60. enlargement of time for, 55. further defence or answer, when matters arises, pending action, 59. joinder of issue, 58. INDEX xxvii. l'r,EAi)i.N<:. pleatiiiigH subHcqiiently to reply, 5S. reply. M. statement of claim, 'i'.i. See Statement >. indorsement on. address of solicitor, 47. of notice to plead or demurr, 51. infants, admission by non-denial not to include. 48. irrelevant, or unnecessary matter, 51. issues of facts, trial of, withf)Ut, 78. joinder of issue, 49, 58. (i5. judgment, 50. in default of. See Dek.\ult of I'i.kading. knowldege, 49. law. point of, may be raised, bj', 50. ])re8umption of, unnecessary, 50. limitations. Statute of, to l)c specially pleaded. 4.S. lunatics, admissions by non-denial not to include. 48. malice, 49. mandamus, on return of writ of, 121. marking of, 47. material facts to be stated in. 45. mirsepresentation, 47. new a.ssignmcnt abolished. 58. ground of claim, 48. matter arising after action brought, '>'■). not guilty by .statute not allowed, 48. notice, 49. to ])lead, 51. numl)ers in, 45, 45. partictdars in. 47. Sec I'.sktk i'i..\i{s. payment into Court. 5(1. perforinaiicc. 48. ])oinf of law may be rai.scd in. .")('. preliminary act, 52. |)rc.«nmption of law, unnecessary. .50. printed ov written, 47. ])rohibitioii, in lieu of writ of. 122. l)roli.\, cost of, 45. (juo wurranio, after information of, 122. release in, 48. relief. See Relief. reply. 58. See Rei'LV. scandalous or unnecessary striking out, 51. .separate or distinct facts, 47. sot-off, 45. See Set-off. .settled or stated account, 50. xxviii. INDEX Pleading, signed bj' solicitor or ])art y, 45. statement of claim, 52, 53, Sec S'iatkmf.nt of Claim. Statvte of Frauds, 48. Statute of Limitation", 48. striking out, 50. Sec Stkikixg Out. technical objection to, for want of form, 50. trial without, 44. Sec Trial. undue influence, 47. vacation, in, not allowed without order, 131. wilful default, 47. Point of law, 50. See Demurrer, Law. Practice, admiralty, 101. criminal, 156. direction of Justice in cases, not })rovided for, 139. when consent required, to j^rocedure by persons under a disability, 25. Practitioners admission rules. admission, 158, 160. of Federal Practitioners, 157. appeal from Board, 161. apj)lication for admission as student-at-law, 158. Board, the, 157. certificate, 159. defining time for final examination, 159. duration of studentship-at-law, 158. evidence, of passing final examination, 159. intermediate examination, 158. preliminary examination, 158. exemption from examination, 159. fees, application of, 161. intermediate and final examinations, 158. qualifications of students-at-law, 157. removal and suspension, 161. secretary. Board, 157. short title, 157. students-at-l^w, 157. attendance book, 159. to attend High Court, 159. reside in the Commonwealth, 158. subjects of final examination, 159. title, short, Praecipe, not required on issue of writ, 29. Preliminary act, 52. Preservation of property, 112. See Interim Preservation or Custody of Property. Presumption of law, need not be pleaded, 50. Principal Registrar. See Registrar. Principal registry. See Registry. Printing, pleadings, 47. Procedendo, writ of, 122. Proceedings, amendments of defects, in, 11. at trial, 82. See Trial. paupers, by. See Paupers. Registry, in, 4. transfer of, 4, 5. staying. See Stay of Proceedings. Process of High Court. See also Marshall and Other Officers Charged with Service and Execution of Process. date of, 3. sealing of, 3. signing of, 3. testing of, 3. Production, books, of, order for, 9. documents, of, 72, 73. See Documents. of person in custody. See Habeas Corpus. INDEX xxix. Prohibition, aj)|)li(ation for, how made, lis. title of attidavitH on, I Is. of piiicccdin^is ill cane of, I |.s. costs of, 119. jiiflfrmcnt on, 1J2. order, may l)c e.\i)n'88i'd in, without issue of writ, 122. order absolute f(»r, cost of servire, when allowed. 1 Is. in first instance, 1 IS. nisi, returnable In-forc Full Court, lis. pleadin^is in lieu of writ. 12:^. seal to he afhxed to writ of. I3S. stateni<-nt of ciaini. instead of writ of, I2J. writ of j>rort(li ndii, notwithstanding? issue of writ. li*:.*. Promissory note. iSe<' Bill ok K\< ii.an(;f:. Property, interim pi-e.servation of. 111. Question, of fact. Sue Issues. law. See L.wv, Spec i.ai, ("ask. Quo warranto application for leave to exhibit information of, I Is. how made. 1 1 8. relator to be named, ll*L*. title of atHclavit on, I Is. |)roceeclinf;s in case; of, 1 IS. consolidation of proceedincrs upon information of, 124. costs of, 119, 12:5. security for, I2."{. information of, Attomey-Ocneral, in name of, 12.3. defence and subsequent proceedinfrs to. \2'A. disclaimer of defendant on, 12.'}. form of, I2.S. judfrment on, ]2',i. relator in name of, 122. signature and service of, 123. order absolute fur, costs of service, when allowed. 1 I '.I. in fir.st instance, 118. order ni.si for, objections to be stated in, 12.S. returnable before Full Court, 118. relator, on application for, 122. RECElVER.'apjiiication for apjiointment of, 11,3. aiipoiiitcd by Court, duties of, 13. liability of, 1.3. manager distinguished from, 13. security to be given by, 1 13, 1 14. Recovery, of special projjerty other than land when lien claimed, 1 13. Registrar, certificate of for jiayment out of security acc-ount. 70. duties of, when clefendant appears at Principal Registiv. 4. as to ottice co])ies. 139. on request for teni])oraty of cause, "). (>. to issue writs of summons for commeneement of actions. 4. to sign all writs, commi.s.sions and process. 3. and seal, 139. to tiansinit the dcHUiiieiits ill certain ea.ses of ap|H'al. 114. 147. I.")(t. proceedings and documc>nts when laiise tiaiis- ferred. '■>. principal, to telegraph to District Rc-gi.strar entry of appearance at Principal Registry, 3"). receiver's .security to be taken iM'fore, 1 14. security given in ])resence of, (iS. subjiocna to attend befoiv, S.^, SH. Registry, District. a])|)earance at. or I'riiuipa! liy defendant, when allowed. 4. 34. du|)lieate of seal of Court to be kept for, 3. notification of Di.striet Registrar at. on ai)|)earanie a) Principal. .3."». XXX. INDEX Registry, District, transfer of ijrowcdinjis from, vvlu-n (Icfcndants appear at Princijial Registry, 4. where cause pending in. finther ])roceedings may be talven, at, 4. writ of summons issued from, statement as to option of appearance, 2S. l*rinii]ial. seal of Court to be lce])t at, 3. where cause pending at District Registry, defendant may appear at, 4, 34. seals required shall be kept at every, 3. office, kept at each, 138. .service, by filing in, 137. temporary transfer of causes from, where no -lustice ])rescnt, 5, (i. transfer of cause from one, to another, 5, (i. transmission of documents from, to Registry on appeals, 144,147,150. demurrer, 61. Rei.a']'()k. See Quo Warr.a.\to. Relea.sk. ijleadinj;. in defence or icply, 48. Relief, clai.m to he indorsed on writ of summons, 27. specifically stated in pleading, 53. founded on separate facts, to be stated, 47. general need not be claimed, 53. judgment, against, in cases of matters arising after judgment, 5)6. Renewal of writ, 30. Reply, close of jjroceedin^s in default of, (i5. delivery of, 45. demurrer to, 60. joinder of issue on. 58. further, when matter arises pending action, 59. new assignment abolishcnl, 58. pleading after, 58. separajte, 47. time for, 58. Representative cai)acity, denial of, 54. Return, of ('ommis,sion under Order XLIIa. 109. Request, to examine witnesses, 84. Residence, 4. Review of taxation of costs. Revivor, formal pioceedings for, on death of party to an appeal, not necessary, 16. Revocation of patents. See Patents. Rule ni.si, a})peal from refusal of, 144. Rules of court. annulment of, on address to Parliament, 14. directions by Justice as to procedure, when none prescribed, 139. Justices of High Court may make, 14. non-compliance with, 130. power of making, extends to altering, annulling or re-enacting rules in Schedule to High Court Procedure Act, 14. presrrihing. limitations as to executicm again.st persons. 12. moflc of proof of particular facts, 9. time and manner of institution of ajjiieal, 15. use of Seals, 3. rules in Schedule to High Court Procedure Act. to be, until altered, 14. to be laid befoie Parliament, 14. Sale of pro])erty, a])])lication as to. 1 16. Satisfaction, of judgnu'Ut, 97. Scandalous matter, interrogatories in, 71. striking out of, in affidavit, 88. pleading, 51. Seal, documents when sealed with, of High Court receivable in evidence, 3. duplicate, at each Registry, 3. form and use of, of High Court, 3, 138. of Hiuh Court to be kept at Principal Registry, 3. I.XDEX Seal, ofHtc. |:J8. copy «f rt'cord . out of nii'ncy paid into Court to. 7!). receiver, to l)c i,'i\-cn by, 114. record of Court, on tiling, to b"coinc, fi.S. recovery of s[iecitic pro])erty other than land, held as, ll.'J. sun'tics, apjiroval of by Hcs.rii^'trai'. t)8. title of, ()8. Seiurity for costs. See also Secukitv. amount of, 69. on api)eal to High Court, I"). increa.se or rcfluction of, l."), 70, 14!t. ajjpcal on. Sec Appeal. certiorari, by applicant for writ of, IMt. counter-claiming defendant out of juri.sfliction. in case of, fiO. directions as to, 70. form of, on ap[)eal from Supreme Coiiit of a State, 150. general j)ower of Court to re()nir<-, to be given, 70. j)ayment into Court ft)r, disjjosal of money after, 70. ])laintiff out of jui-isdiction, in case of, (i'.t. (jiio ir(irriiiili). III) ap])lication for, ]'2'.i. second action for same raus<', in case of. fill, staying proceedings until given. 70. time for application for, 70. time for giving, not to be rccUoneil in time allowed for pleading, 1^2. Sentence, judgment inrludcs, 2. Separate, j)leadings, order for, 22. trial, order for, 22, 47. Service, address for. See Audrk.ss. address for, of ]>laintitf when omit1i-d, l.'{7. affidavits, of 1.S7. documents of. 72. ai)peal, of notice of. 141, 148. appearance to writ, where no. how effected, i;{7. certioniri, of order nisi for, 1 19. committal, of notice of motion for, its. for enntempt. 12fK cross a])peal, of notice of. 14.'>. l.")l. cress claim, of, ;)4, /)">. day on which, not to be etfectcd, l."{7. defence of, 'A, ")"). demurrer, of, fiO. documents, of, how elTectefl, ."U. I.'iti. proof, by aflida\it, 10. filing, by, in default, 47, 1.37. habefi.'< corpus, of writ of, 124. judgment, of, when ])leafl('d, .')0. and order when required. i:{t). mandamus, of return of writ on pro.sc( iitor. 121. mandamus, of writ of. 120. mode of, 13(i. new trial, of notice of motion fm. 14."!. xxxii. INDEX Service, notice of death, inaniage, or insolvency, of party, in case of, 38. from Hi,<;h Court, 136. guardian (id litem on application for ap))ointment of, 36. of appearance, 3.5. trial, 81. without pleadings, 44. payment into Court, of, 56. order for discovery, 75. to continue proceedings, 38. originating proceedings of. Sec Service of Originating Proceedings. personal, manner of, 136. pleading of. See Pleading. quo warranto, on disclaimer on information for, 123. of information of, 123. setting aside, in case of conditional appearance, 36. solicitor, of order for discovery on, 75. subpoena, of, 86. substituted, 136. summons for directions, of, 43. on application in Chambers, 117. time of day for, 132. writ of summons of. See Originating Proceedings. Service of originating proceedings. acceptance of undertaking as to, to be in writing, 31. added party, on, 24. advertisement, by, 32. affidavit of, 32, 37. British subject out of jurisdiction, on, 33. committee of lunatic, on, 32. copy, of, in case of lost writ, 31. corporate or unincorporate body, on, 32. firm upon, 99. how effected, 31. husband and wife, on, 31. indorsement of, 32. infant, on, 31. lunatic, on, 32. married woman, on, 31. out of jurisdiction), allowed in what cases, 32. British subject, 33. foreigner on, 34. indorsement of writ, for, 33. leave for, not required, 28. notice in lieu of, 33. writ of summons for, 28. concurrent, 30. of notice of, 30. partners, upon, 99. personal, how.effected, 31. when to be, 31. renewal of wi-it in cases of inability to effect, 30. setting aside in case of conditional appearance, 36. substituted, order for, 32. undertaking by solicitor to accept, 31. unsound mind, of person of, 32. Set-off, amendment of, 67. disallowance of, 67. damages or costs between parties, of, 133. defence to, of matter arising pending action, 59. defendant may plead, 45. demurrer, to, 59. judgment, where, balance in defendant's favour, 55. mis- joinder of plaintiffs, not effected by, 23. order for separate trial of, 47. particulars of, in trial without pleadings, 44. .striking out of, 45. INDEX xxxiii. SE'rriNG aside. appearance, .35. (leimirrer, where no ground ,stat<-d, (Ml. judgment. See .Ji'dcment. proceedings for non-eomplianee with ruii-s, l.'if). Settino down. action for trial, 81. api)eal from Justiee of High Court, 142. inferior Court exereising federal jurisdiction, 15.3. State Supri-nie Court, 151. demurrer, (iO. motion for judgment. Hit. point of law for hearing, 50. sjMu-ial ease when a ])er.son under a disabilit}', a party, 77. .summons for directions, for further hearing, 44. SiGNATURK, affidavits, to, «7. authority of ne.xt friend to, 25. coi)y of writ, to, 29. party or solicitor, of, proof in' affidavit, 10. ])leadings, to, 45. special ea.se, to, 77. writs, commissions, and ])rocess of High Court, to, 3, 139. Sittings, Full Court, of, 137. Justiee, before single 137. notice of trial by jury to be for first day of, 81. places to hear appeals, 140, 14(), 147. Solicitor, acceptance of service by, 31. acts for party, 139. address for service. 22, 34. indorsement, of, on j)leading, 47. affidavit by, on entering apju-arancc for infant, 36. appearance, by several defendants by same, 35. undertaking, by, to enter, 31, 98. appointment of, by party during action, 137. attachment of, for not entering apjjcarance, 35, 98. for not giving notice to client of order for discovery, 75. authority to, by next friend, 25. costs of. See Ccjsts. taxation of, 134. discovery, service of order foi', on, 75. fees payable to, 134, 135. guardian ad litem, costs of, 133. .service on, of order for discovery, 75. of paity formerly ajjpearing in |)crsiin, 137. signature of pleadings, 45. special case, 77. undertaking by, to accept service, 36. attachment for breach of, 35, 98. Special case. agreement as to payment of money and costs of, 78. applications to have questions of law decided by, 77. consent by, 77. copies of, for Justices, 78. documents referre(l to in, 77. entry of. for argument, 77. before Full Court. 78. memorandum of, form of, 78. when party under a disability. 77. entry of judgment on, for agreed sum, 78. filing of, 77. inferences of fact, or law may be drawn by Court on, 77. order for, 77. setting down, wlicn paity to such case under disability, 77. 78. signature to, 77. Special leave to appeal. See Leave to Appeal. xxxiv. INDEX ^ State, laws, application of. to attirmation in lieu of oath, 10. discharge of proi)erty taken in exeeution, i:'.. duties of receivers and managers, 1:5. enforcement of judgments, 12. juries and jurors, 8. oaths, form of, 10. State Courts, api)eal from, to High Court, U(i. 147, If):}. Hec Appkai.. Statement of claim. See also Pleading. allegation of stated or settled account in, ")0. alternative relief claimed by, 47, o.H. amendment of, »)(>, 67. to introduce what otherwise alleged l)y new assign- ment, 58. eosts of prolix, 45. when delivery unnecessary, ").'3. delivery of, 45. default of, 63. filing, by, 47, 137. order for, 44. time for, 53. when required, 53. with writ, 53. demand for, 53. demin-rer to, 59. enlargement of claim by, 52. extending, 52. filing of, before proceeding in default of appearance, 38. further and better, 51. indorsed on writ, 27. motion for judgment on, when default in delivering defence, 65. place of trial to state, 53, 79. proof of, when defendant does not appear at trial, 82. question of law raised by, 50. quo ivarranto, information for, to set out facts in same manner as, 123. relief claimed to be specifically stated in, 53. general, need not be asked in, 53. striking out, 50. See Striking Out. Statement of defence. See Defence. Statute of limitations. defence of, on trial without pleadings, 44. pleading, 48. renewal of writs prevents operation of, 30. ^ Stay of action or proceedings. abuse of proceedings, on, 115. appeal or motion for, new trial not to o])erate as. 146. appeal on, 16, 146. from Supreme Court of a State, 152. application for, 115. compromise of action where, 115. costs of former action not paid, where. 115. frivolous or vexatious action, in case of, 51. general authority as to, 115. improperly instituted by next friend, 115. money paid into court, in case of acceptance of, 57. order for, in case of appeal, 16, 146. new trial, in case of applictaion for, 146. particulars, not to operate as, 51. partners, in action by, for failure to disclose partners names. 98. pending appeal, 16, 146. hearing of special case, 77. quo warranto, in case of information of, against several i)crs(ms, 124. security for costs, until, given, 70. summons does not operate as, 117. vexatious, when proceedings, 115. withdrawal of juror, by, 115. INDEX XXXV. Stoi' order. ajjplication for, 1 14. inodi- ..f, 1 14. costs oc-ca«iont'd by, 114. .Stuikimj out. affidavits, from, scandalous matter, etc., SS. I'onditional a|)])caran((', lid. ilcfciK (■ for iioii-coiiipliaiHc with oriler for discovery, Ta. dciiuirrer wiien do( tiiiient not sufticiently .set out. «S(). part of alleged cau.se of action, (i2. jileadings when denuirrer allowed to such part. (il. parties, order f(jr. -'.i. application for, 2^. pleaidiiiii. 85. attendance of witness, 85. 8(5. chambers in, St}. cross e.\aminati(jn on affidavit, for, 8tj. examiner, before, 85. officer of Court, before. S4. 85. Registrar, before, 85. dKces Icciini, >^r). duration of. 8(i. refu.sal to attend or be sowrn wlun suiiunoneij bv, 84. obey. 8(5. subpoena, service of. 8(5. affidavit of, 8(5. time for, 8(5. StTBSTITl'TKl) ser\ ice. docunients of, I'Mi. originating proceedings, of. :}2. Suit, dismissal of, where plaintiff fails to coiuply with order f(jr production of books, 9. order for discovery, 74. SujMM.\ry judgment. See also Leavi: m ,Si(;n Si m.makv .liiKiMKNT. actions for account, 43. ai)i)lication how made, 43. e\idencc in answer, 43. order for account, 43. SuMMON.S, adjournment of. into Court, 117. applic-ation in Chambers, to be made bv. 1 17. direction.s, for, 43. See Si'M.vioxs fok Direction.s. evidence on, by affidavit or orally as directed, 10. ex parte applications, on, 1 17. when unnecessary. 117. included in same, what may be. 1 17. infant, how to ajipear on. ,3(5. irregularity, to set aside proceedings for. 1:{!I. originating, con)mencement of proceedings by, 2\. .sealing of, I 17. 37. service of. , 117. l.y ti lliUL- wlle ic no a PI )cai am nxid e of . I3(i. time for . 117. signature to. 11 < . stay of pr oceedi ngs does not ( )])er ate as. writ of. Se(> W KIT OK Si l-MMONS. SuM.MOXs for directions. adjournment of. from time to time, 44. affidavit on. not necessary, 44. costs of ai)])lication that sliould have been included in, 44. form of. 43. nn\tters included in, 44. xxxvi. INDEX SuMMOXs notice of intention to make application under, 44. order on, 44. parties to apply for order on. 44. Rules of Court subject to variation by ordei- undei-, 44. service of, 43. setting down for further hearing, 44. time for taking out, 43. Sunday, exclusion of, in computing time, 131. Offices of the Court not open on, 138. service not to be effected on, 137. warrant in Admiralty action may be served on, 137. Tax, land, appeals, 129. income, appeals, 129. Taxation, of costs,' 134. review of, 134. Technical, objection. See Error. to pleading, not to be taken, 50. Telegraph, affidavit sent by, contents of, how brought before Court. IS<), 87. notification by, of appearance at Principal Registry, 3r>. transmission of documents by, on temporary transfer of cause, C. order made by, 6. of precis of evidence by, for application, 7. Temporary transfer of cause, 5, 7, 149. Tender, before action, defence of, 56. Teste of, writs, commission and process, 3. Testimony. See Evidence. Time, abridgement of, 132. day of, for service, 132. enlargement of, 132. for appeals, 141, 145. expiration of, on Sunday or close day, 131. Inter-state Commission appeals, in, 154. vacation not to be reckoned in time for filing, delivery and amending pleadings, 131. Title, affidavits, of, 86. jjroceedings, of, 21. on apjjlication for certiorari, etc., 118. security of, 68. Tort, service out of jurisdiction, in actions for, 33. Trade marks. See Patents. Transfer of cause. from one registry to another on order for the Court, 4. transmission of documents on, 5. Principal Registry, to, when defendant appears there, 4. notification of appearance, 35. transmission of proceedings, 4. temporary, for purpo.se of application, 5, 149. hearing of application and re-transfer, 5. no fee payable for, 5. transmission of request and documents upon, 5. by telegraph, 6. of notice of application, 6. order made, 7. Trial, adjournment of, 82. affidavit, on, by agreement. 11. I)articular facts, of, 11. person, of, may be read, 11. service of documents, of, 10. signature, of, 10. costs of, 133. See Costs. default of aijpearance at, by defendant, 82. by plaintiff, 82. directions as to, summons for, 44. precis of evidence, 7. IN1>KX xxxvii. Trial, early, ordfi- fur, li;{. ■ entry for, 81. delivery of copy of iileaclin>^.s on, HJ. notice of trial, after, HI. I)arty served with, of trial, by. Si'. ])leadings, before close of, 81. time for, 81. withdrawal after entry for. ti.'J. event of, co.st-s to follow, I'.i'.i. evidence at. See Eviuk.nce. fact, of questions of. See I.ssuES. findings of facts at, entry of, 83. further consideration, on, 8."}. interrogatories, at, use of, 7.3. issues of. See Issues. judgment at. See Judoment. jury, with, application of State Laws on, 8. may be ordered, 7, I'.i. at any time. 80. Justice to be before, without jury" unless otherwise ordered. 80. mode of, 7, 79. application as to, may be made on summons for dircction.'f, 44. new, 144. See New Trial. nonsuit at, 82. effect of, 82. notice of, avoided if entry for trial out nf time. 81. c(juntermandin',', SI. defendant, by. Si. entry of cause for trial before. 81. form of, 81. jury, application for trial with, after, 79. length of, 81. omi.ssion to giv(>, by plaintiff, 80. plaintiff, by, 80. service of, 80, 81. without piea. See .Si'I!I'(jena. testimony of, examined at furiiier trial may b<- i.rdere.l i.. !».• read on new trial, S. WiUT, date of, .'1. i.ssuc of, in Kings name, ."{. sealing of, :}, 1.{S, 1:5